Before McLAUGHLIN, STALEY and FORMAN, Circuit Judges.
Appellant, Max Reiner of Miami, Florida, sued the appellees, Bankers Security Corp., and James F. Hickey, both of Pennsylvania, respectively owner and operator of the Sylvania Hotel in Philadelphia, for damages for personal injuries, in the United States District Court for the Eastern District of Pennsylvania. Mr. Reiner charged the appellees with maintaining a nuisance and negligence in that the carpet covering the floor of Room 615 in the hotel, which he had occupied for about three weeks, was not in a safe condition, and that they knew or should have known of the hazards it presented. He further $charged that he tripped on a worn section of the carpet, fell and suffered injuries for which he sought damages.
A jury trial was held during which Mr. Reiner testified that he was about to terminate his business visit to Philadelphia on March 5, 1955 and left his room in the late morning to have lunch, check out and make a purchase prior to his emplaning for Pittsburgh. On returning to his room in the early afternoon he testified that he entered it, walked a few steps when the toe of his right foot "got caught and wedged tightly";*fn1 that he fell forward and struck his head against the radiator in the room and lost consciousness; that when he regained it there were several people in the room; that the table had been knocked over and the telephone and lamp on it had been thrown to the floor. Mr. Reiner further testified that a Dr. Davitch*fn2 appeared and administered first aid to him; that his brother, William Reiner, a resident of Philadelphia, came to him in response to someone's call; that his brother telephoned for a photographer to come and take pictures of the carpet, which was done before he was removed by his brother to the latter's apartment late in the afternoon; that in the fall his head and thigh had been hurt. He identified the picture taken by the photographer showing a worn section of the carpet in front of the bureau in the room, part of which had separated and showed a cup like protuberance.
Mr. Reiner's brother, William, testified that he had responded to a call notifying him that Mr. Max Reiner had had an accident, and found his brother lying on the floor of the room with injuries to his head and thigh; that a number of people were in the room and that a doctor was caring for him; that he and the doctor lifted him to the bed. He stated that, pursuant to a suggestion by someone he called a photographer and had pictures taken of the condition of the carpet; that he and one of his employees in the afternoon moved Mr. Max Reiner to his (William's) apartment.
A Mr. Disbrow was called for the defense who testified that he was a room clerk on duty at the desk of the hotel on the afternoon of the accident; that the telephone operator notified him that something was wrong in Mr. Reiner's room as she could hear strange sounds on the switchboard; that he repaired to the room and was joined shortly thereafter by Mr. Weaver, another room clerk; that he found Mr. Reiner lying on the floor breathing heavily and was told by him that he had tripped and fallen and the lamp had struck him on the forehead; that Mr. Weaver and the witness placed Mr. Reiner on the bed and the doctor was called. Mr. Disbrow identified the photographs of the carpet stating that the photograph depicted a broken seam in the carpet measuring some 15 to 20 inches, which he said was located in front of the bureau in the room. Mr. Weaver corroborated Mr. Disbrow, stating that he assisted him in placing Mr. Reiner on the bed. He observed a small bump on Mr. Reiner's forehead and noticed that the seam in the carpet had been ripped. He left the room before the arrival of the doctor.
Mr. Max Reiner's testimony covered one and a half days except for an interruption to give one of his doctors an opportunity to testify. In the afternoon of the second day of the trial the judge explained to the jury that following a conference with counsel he had concluded to submit to the jury the question of liability which would be tendered to it in the form of a questionnaire and that depending upon its answers would be the termination of the trial or the taking of further testimony on the issue of damages and a separate verdict on that feature of the case if it came to the second issue.
Appellant and appellees concluded the testimony of their respective witnesses and rested their cases on the third day. The court showed counsel the special verdict questions which he proposed to propound to the jury under Rule 49(a) of the Federal Rules of Civil Procedure.*fn3 No objection was made to their form or to the manner in which they were submitted. The questionnaire consisted of the following four interrogatories:
(1) "Was the defendant guilty of negligence." The jury was told that if its answer was "No" to this question it need not pursue its inquiry but should return that answer as its verdict. If, however, its answer was "Yes" then it was to answer the next question, as follows:
(2) "Did such negligence cause the fall described by the plaintiff." If its answer was "No" the inquiry would end and it would so report. If its answer was "Yes" then it would proceed to the next question which was:
(3) "Was the plaintiff guilty of negligence." If it found "No" as the answer to this question its inquiry would terminate there, but if the answer was "Yes" then it would apply itself to the final question:
(4) "Did that negligence contribute to the fall."
The jury responded to question (1) "Was the defendant guilty of negligence." with the answer "Yes", but to question (2) "Did such negligence cause the fall described by the plaintiff." with the answer "No". The jury was thereupon polled and affirmed its verdict.
In accordance with the special verdict rendered by the jury the court ordered judgment in favor of the defendants.
A motion was made for a new trial and for judgment n.o.v., which was denied.
This appeal ensued in which the following grounds are charged: (1) that the jury's answers to the special interrogatories were inconsistent, contradictory, arbitrary and unsupported by the evidence and (2) that the case was improperly submitted because (a) the issue of causation was not explained to the jury and (b) the jury was improperly influenced by the circumstances of the submission of the case.
Appellant argues that the jury's answer to special interrogatory No. 2 ["Did such negligence cause the fall described by the plaintiff."] flatly contradicts No. 1 ["Was defendant guilty of negligence."].
Appellant submits that the version of the fall he gave at the trial stands undisputed except for the appellees' introduction of his testimony on pretrial deposition; that it is corroborated by the condition of the carpet as indicated in the pictures and by his witnesses; that appellees' witnesses concurred with him concerning the condition of the room and offered nothing to cast suspicion on his version of the fall. He argues that since the maintenance of the defective carpet was the only negligence pleaded by him it must have been that to which the jury referred in its affirmative answer. He reasons from this that the defective carpet must have been the only cause of the accident. In effect, appellant claims that the jury had no choice but to find that the condition of the carpet was the cause of the accident and hence its negative answer was "grossly inconsistent, incongruous and beyond explanation", clearly manifesting that the verdict was the result of "mistake, caprice, prejudice or other improper motive." The appellant cites as precedents buttressing ...