Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
Plaintiff John Pinkowski brought this diversity action against defendant Sherman Hotel to recover damages for personal injuries. It was alleged that plaintiff's injuries were occasioned by defendant's negligence in its maintenance of electrical devices in its hotel and in its failure to provide plaintiff a safe place to work.
The cause was tried to a jury on the issue of liability only, and the jury was subsequently discharged when it was unable to agree upon a verdict. The trial court denied defendant's motions for a directed verdict at the close of plaintiff's case and at the close of the entire case. It denied a similar motion by plaintiff at the close of the entire case.
Following discharge of the jury, each party filed a motion for judgment and such motions were taken under advisement by the trial court, and briefs were submitted. Subsequently the trial court granted defendant's motion for judgment and dismissed the cause. In its order of dismissal the court, inter alia, said: "This is a motion that should have been granted at the close of the plaintiff's case but, out of abundance of caution, the court submitted the cause to the jury."
It is from this judgment for defendant that plaintiff now appeals.
Defendant's motion for judgment following discharge of the jury and the trial court's ruling thereon were made pursuant to Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. The pertinent part of such rule reads:
"(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. * * * If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial." (Emphasis added.)
The primary question to be decided on this appeal is "whether under the facts before us, as shown by the record, there was a case of liability properly made out to warrant a submission thereof to the jury for its determination." Woods v. Geifman Food Stores, Inc., 7 Cir., 311 F.2d 711 (1963).
In Woods, we reiterated the rules governing such a review on appeal. We must determine whether the evidence justifies submission to the jury. Lambie v. Tibbits, 7 Cir., 267 F.2d 902, 903 (1959). In doing so, we must look to all the evidence in the record, together with all reasonable inferences to be drawn therefrom. Burg v. Great Atlantic & Pacific Tea Company, 7 Cir., 256 F.2d 613 (1958). Where such evidence and inferences, when viewed in the light most favorable to the party opposing a motion for judgment in accordance with a prior motion for a directed verdict, are such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions, such motion should be denied. Valdes v. Karoll's, Inc., 7 Cir., 277 F.2d 637, 638 (1960); Kropp Forge Company v. Globe Indemnity Company, 7 Cir., 275 F.2d 539 (1960); Hardware Mutual Casualty Company v. Chapman, 7 Cir., 272 F.2d 614 (1959); Smith v. J. C. Penney Company, 7 Cir., 261 F.2d 218 (1958).
At the time of the occurrence, plaintiff was an experienced painter employed by Fire Equipment Company and J. W. Ryan Painting Company, who had a contract to paint rooms inside the Sherman Hotel in Chicago, Illinois.
Plaintiff and his co-worker, Frank Young, were directed to paint a room, nine feet by twelve feet, with one window, located in the east side of the hotel. On the south wall of the room was an electric wall socket or convenience outlet in front of which was located a small writing table or desk with a table lamp on it.
The two painters brought with them to the room some materials needed for their work, including spackle, benzine, paint, shellac, rags, sandpaper and alcohol, all supplied by defendant. They moved the furniture in the room toward the center and covered it and the floor with dropcloths.
The table lamp on the writing desk was lighted when the painters entered the room. Young pulled its plug out of the socket and put the lamp aside until the contents of the room were covered. He then placed the lamp on top of the drop-cloth covering the writing table and ...