Appeal from District Court of the United States for the northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before MAJOR and KERNER, Circuit Judges, and BRIGGLE, District Judge.
Plaintiff Dryfoos recovered a judgment in the District Court for $10,000 against the Scavenger Service Corporation, a foreign corporation for personal injury due, as he alleges, to the negligent conduct of employees of the defendant. Defendant appeals. The questions for review are:
1. Was there evidence of defendant's negligence justifying the submission of that question to the jury?
2. Was the plaintiff as a matter of law guilty of contributory negligence barring his recovery?
3. Was there a causal connection between the accident and the loss of sight in plaintiff's left eye?
4. Did the District Court err in the giving or refusing of instructions?
The facts as gleaned from the testimony of plaintiff and his witnesses show that at about seven o'clock in the morning of June 25, 1938, the defendant parked its garbage truck on the south side of 71st Street in the City of Chicago, about fifteen feet west of Jeffery Avenue and headed east; plaintiff walked from a restaurant on 71st Street located about one hundred feet west of Jeffery Avenue and approached the curb at or near the rear of the garbage truck. Plaintiff was bent on crossing the street to the northeast corner of 71st Street and Jeffery to take a bus to his work and instead of going to the regular crossing at Jeffery Avenue, stepped into the street intending to cross diagonally behind the truck in question. Plaintiff saw a man on the tail gate of the truck and then glanced to his left and away from the truck to ascertain whether there was any approaching traffic from the west; as he glanced away from the truck, defendant's employee lowered a ladder that was hinged on the tail gate of the truck and it fell on plaintiff. The ladder weighing about fifty pounds struck the upper front part of plaintiff's head, stunning him and causing an abrasion from which he bled profusely. The ladder, some five feet in length, was hinged at one end to the truck and when not in use folded up over the rear of the truck, and when about to be used was swung backward until the upper end rested upon the street. Thus placed, it was used by defendant's employees in carrying garbage to be dumped into the truck. Defendant's attendant who lowered the ladder had his back to the sidewalk and did not see the plaintiff until the ladder hit him. Plaintiff was about three feet back of the truck and apparently under the ladder as it was swung backward. Plaintiff had seen defendant's garbage trucks before and saw the ladder on the rear of the truck on the day in question and probably knew its purpose. He paid no particular attention to what the attendant at the rear of the truck was doing at the time and had no knowledge or warning that he was about to lower the ladder until it hit him on the head. (Defendant makes much of the statement of plaintiff on cross examination that apparently the attendant was getting ready to lower the ladder when he saw him, but a careful study of the cross examination indicates that this was a conclusion of the witness viewed in an ex post facto light, and does not necessarily indicate that he at the moment had knowledge of defendant's contemplated operation or intended to be so understood.) It was a bright morning, plaintiff was walking and in no hurry as the bus he intended to take was several blocks away. The middle of 71st Street was obstructed by the Illinois Central suburban tracks and platform and plaintiff could not have crossed directly north, but would have been obliged to take a northeasterly direction until he reached the regular crossing at Jeffery Avenue.
After his injury plaintiff was given first aid in a nearby drugstore where a doctor was called. He later on the same day went to his work as a meat cutter. He was employed only one day per week, but continued in such employment. He complained of severe headaches, and within three or four days after the accident began to notice spots in front of his eyes. He was examined by various doctors, including those representing defendant, and at and before the time of trial was concededly blind in his left eye as the result of a detached retina.
While defendant asserts in its brief that there is no substantial dispute in the evidence as to the manner of the accident, we find defendant's witnesses disagreeing in a number of particulars with the picture given by plaintiff and his witnesses. For example, at least one witness says plaintiff ran directly into the ladder, others that the ladder fell on him; some indicate the ladder was lowered slowly, others that it was permitted to drop with coinsiderable force to the pavement. A substantial number of witnesses testified on both sides and the controversy arising from their testimony cannot be here detailed. It presented a most important question for the jury and for the trial court, but one not pertinent to our duties on review. The negligence with which defendant was charged was that it lowered the ladder in a careless and negligent manner without regard to the safety of the plaintiff and without any warning. We think the evidence presented clearly made this a jury question and the District Court rightly submitted such question to them for determination.
The question of plaintiff's contributory negligence is likewise a question of fact for the jury unless the court can say as a matter of law that all reasonable minds must agree from the evidence that plaintiff was not in the exercise of ordinary care and that such failure contributed to his injury. Plaintiff entered the street at a place not ordinarily used by pedestrians, but it cannot be said that this fact alone bars recovery. He was rightfully in the street and defendant's truck was rightfully in the street and the conduct of each must be viewed from the standpoint of what a reasonably prudent person's conduct would be under like or similar circumstances. Certainly, it was prudent for plaintiff to survey the street for approaching traffic from the west, because it was reasonably to be expected that there would be traffic in the street and plaintiff could not blindly proceed into its path. He was also near the garbage truck on his right, which truck was not moving but parked at the curb.Would an ordinarily prudent person expect some sudden movement at the rear of the garbage truck that would endanger his safety? True, he knew the attendant was at or near the rear of ...