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LARKIN v. MAY DEPT. STORES

April 3, 1957

Laura LARKIN, Plaintiff,
v.
MAY DEPARTMENT STORES, a corporation, Defendant



The opinion of the court was delivered by: WILLSON

On February 6, 1957, plaintiff having completed the presentation of her evidence to a jury, this court granted defendant's motion for an involuntary dismissal pursuant to the provisions of Rule 41(b), Fed.Rules Civ.Proc., 28 U.S.C.A.

This is a diversity case. The negligence law of Pennsylvania applies. The court desires to set forth the reasons why the dismissal was entered.

 The involuntary dismissal under Rule 41(b) is the equivalent of a directed verdict. Federal Deposit Ins. Corporation v. Mason, 3 Cir., 115 F.2d 548, 551; Whitley v. Powell, 4 Cir., 159 F.2d 625. Therefore, in giving consideration to the motion during the trial and now, this court is concerned solely with whether the evidence on behalf of the plaintiff, together with the reasonable inferences to be drawn therefrom, considered in the light most favorable to her, made out a case for submission to the jury. My view is that the plaintiff failed to show an issue for the jury.

 The Supreme Court in Gunning v. Cooley, 281 U.S. 90, at page 94, 50 S. Ct. 231, 233, 74 L. Ed. 720, announced the applicable rule:

 'A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule 'that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed."

 On July 18, 1952, plaintiff was injured when she fell on leaving Kaufmann's Department Store in the City of Pittsburgh. Plaintiff was in the store as a business invitee. It was about noon. She walked toward the Smithfield Street exit and started through the revolving door nearest Fifth Avenue. Plaintiff is a woman five feet eleven inches tall and at the time weighed two hundred pounds. She was then 73 years of age, and had been retired for some ten years. Plaintiff's testimony was that she started through the door with her hand on the bar; that the door swung or revolved too fast as she went through it, so that the panel behind her struck her on the back, propelling her to the floor. She fell upon her left hip. While lying there, she looked over her right shoulder and noticed that the door continued to revolve some 'three, four or five times.' (Emphasis supplied.) No one else came in or out of that particular door during the time she was going out. A crowd soon assembled and plaintiff was then taken to the first aid room in the store and later to a hospital. She received a broken hip and was hospitalized until December 24, 1952, and there is no doubt but that she is permanently disabled.

 The items of negligence alleged in the complaint were, in general, that the defendant permitted a governor or brake device which controls the speed of the door to become defective; that it failed to make an inspection of the door in question; that defendant failed to make such an inspection of the particular door in question as would have disclosed the old, worn out and defective condition of the door; that it failed to make the necessary repairs to the door; and that by the defendant's failure to do so, a dangerous and hazardous condition was permitted to exist.

 At the pretrial, the court endeavored to have plaintiff's counsel state the negligence he proposed to prove. He responded: 'We say that the door was defective, -- ' 'We will show that the felt pads on the door -- I mean that the felt pads were not extended so as to come in contact with the shell of the door, and that the door revolved too fast.' Plaintiff's evidence at the trial, however, failed to show any defect whatsoever in the door. Plaintiff herself was unable to show any defective condition in the padding or weather stripping of the door panels. Plaintiff's testimony was that she was the only person present at the time of the accident; that no one made any examination or inspection of the door at the time the accident occurred.

 The door in question is seven feet in diameter and six feet eleven and one-quarter inches in height. The door consisted of four panels, each panel containing three weather strips at the top, sides and bottom thereof, or a total of twelve strips in all.

 Plaintiff offered the witness Douglas as an expert on revolving doors. He failed to qualify as such. He had, from his experience as a builder and as a customer of the store, a general familiarity with the Kaufmann doors. However, on the issue of negligence he could only say that while going through this particular door in early June of '52, he could see daylight. Plaintiff offered also a witness, T. B. Garman, an architect. He had made no inspection of this particular door. His testimony was, as an architect, that a normal revolving door should revolve but a quarter of a turn after pressure of a person passing through it is removed. When asked what the purpose of the air lock stripping was, the witness said: 'My impression of that is to slow the door down.'

 In summary, then, plaintiff herself initiated the movement of the door. There is no way, under the evidence, to measure the amount of pressure she applied to the door, nor the speed at which it revolved while she was passing through it, but it is noted again that she weighed two hundred pounds and was five feet eleven inches tall. Negligence, if any, in this case, must be inferred from plaintiff's own statement as to the manner in which the door operated at the time she received her injury.

 Plaintiff's counsel has cited several decisions on the issues in this case. Jerominski v. Fowler, Dick & Walker, 372 Pa. 291, at page 295, 93 A.2d 433, 435, which defines the duty of a store owner, as follows:

 '* * * A store owner who invites the public to do business on his premises, although not an insurer of the safety of the invitee, has the affirmative duty of maintaining his premises in a reasonably safe condition for the contemplated use thereof and for the purpose for which the invitation was ...


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