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02/16/71 Betty Joe Bowman, v. Redding & Co.

February 16, 1971




Leventhal, Robinson, and Wilkey, Circuit Judges.


Petition for Rehearing Denied June 2, 1971.



This is an appeal from a judgment of the District Court awarding a directed verdict to the defendants in a wrongful death action. Appellant Betty Joe Bowman is the administratrix of the estate of her husband, James L. Bowman, whose death was allegedly caused by the negligence of employees of appellees Redding and Company, Inc., and Izzo and Company, Inc. *fn1

We reverse. There was proof showing that defendant Redding violated safety regulations designed to protect people in the class of plaintiff's decedent. In the light of this negligence and the facts of this case, we consider issues of proximate cause, contributory negligence, and "last clear chance" negligence (involving a claim of negligence of Izzo as well as Redding), and conclude this case should have gone to the jury. We further are of the view that the normal doctrine placing on plaintiff the burden of proof that defendant's negligence was the cause of his harm is subject to an exception where the jury concludes that the conduct of both defendants was tortious, but that plaintiff has not proved which of them caused the injury or death. In that situation, the applicable doctrine shifts to each defendant the burden of proving that he has not caused the harm. I. The Facts

James Bowman came to his death on the morning of March 9, 1964, at a building then being constructed at 1025 Vermont Avenue, N.W., Washington, D.C., by Redding and Co., general contractor. Decedent, an apprentice caulker *fn2 with eighteen months' experience, met Ernst Tonstad, employed as a foreman by the Vinge Company, at a nearby Washington site at 7:30 a.m. Mr. Tonstad told decedent to go to the twelfth (and top) floor of the building under construction. Mr. Tonstad planned to meet decedent there after a trip to the Vinge Shop in Alexandria, Virginia, to pick up caulking materials necessary for the job. At that time, the windows on the first through eleventh floors had already been caulked, and the glass had been installed, without caulking, on the twelfth. The twelfth floor windows were locked and could not be opened without a key.

On the east side of the building, Redding and Co. had erected a hoist to carry supplies from the ground to the workmen above. An opening was left on each floor on the east side for access to the hoist, with ramps running from about eight feet back inside the building, up a slope to the opening, and then to within eight inches of the path of the hoist cage. The hoist cage ran up and down about three feet from the wall inside a shaft constructed for that purpose. *fn3

Mr. Bowman was next seen by William Marginot, a sheet metal worker who was constructing a scaffold around the interior portion of the elevator ramp on the eleventh floor. The scaffold was built over the ramp so as to completely block the opening in the wall through which the ramp ran. There was a space of about one foot between the end of the scaffold and the interior wall, however, and Marginot observed Bowman squeeze between the scaffold and the wall to look out at the eleventh floor windows from the outside to observe the caulking that had been done there. Bowman then returned inside the building.

On this morning, the hoist was being operated by Robert L. Humphrey, an employee of Redding, from a shed on the ground. With his view of the upper floors blocked by the shed's ceiling, Humphrey depended on standardized bell signals given to him by the workers on the building and on hand signals from workers in sight on the ground in order to know whether to raise or lower the hoist and how far to move it. Shortly before the accident, Leonard Williams, an employee of Anthony Izzo and Co., Inc., the masonry subcontractor, had loaded the hoist with bricks and mortar and had signaled Humphrey to raise it up to the roof, where other Izzo employees were working.

Subsequently, the roof workers rang the bell three times, which signaled Humphrey to bring the hoist down to the ground. At this point, Williams looked up:

When I looked up, after he rang, the cage was coming down. I did not see nobody. I looked up and when it got to about the 11th floor, that is when I looked and saw this man, like he were hanging. I could not see nothing but his feet. It scared me so bad I just came hollering, "Hold it. Hold it." (App. 55)

Although the testimony is not entirely clear, Williams described Bowman as bent over the edge of the twelfth floor ramp, facing the building, and pinned at the belt line between the hoist cage and ramp, eight inches away. *fn4

According to Humphrey, the hoist operator, almost immediately after he started to lower the hoist cage in response to the bell signal, Williams said, "Hold it!" and then immediately said, "Raise the cage up a little bit." Williams testified that he only said, "Hold it." In any event, Humphrey raised the cage about two feet "and in a few seconds the man hit the ground" at the base of the shaft. (App. 24) *fn5

The Safety Board official who investigated the accident and inspected the twelfth floor found (a) "no door, no gate, or hinge bar or bolted bar" across the opening in the building on the twelfth floor, and (b) no "conspicuous copy of a signal system posted at the time of his arrival at the scene of the accident." This was evidence of violation by Redding of each of two regulations issued by the District of Columbia Minimum Wage and Industrial Safety Board:

D-11-21105 Each entrance to a shaft shall be provided with a substantial door, gate or hinged bar. If a hinged or bolted bar is used, it shall be at least 18 inches from the line of travel of the extreme edge of the car or cage, and 36 inches above the platform level.

C-11-21106 (c) Safe Practices. (1) An effective, uniform signal system shall be used to signal operator and a conspicuous copy of such signal system shall be posted at each work level and at the operator's station.

Further evidence of violation of the regulations was provided by Marginot's testimony, but contradictory evidence was also introduced.

The trial judge granted appellees' motions for a directed verdict. By "indulging in all inferences favorable to the plaintiff" he concluded that a jury could reasonably find a violation of the two regulations. He ruled, however, that there was insufficient evidence for a finding that the violations were the proximate cause of Bowman's fatal fall or for a finding that the actions of Izzo's employee Williams were a proximate cause of Bowman's death. He further determined that in any case, Bowman was contributorily negligent as a matter of law. II. The Causation Issues

This appeal, from a judgment granting a directed verdict, must be considered "upon the view of the evidence most favorable to appellants." Aylor v. Intercounty Construction Corp., 127 U.S.App.D.C. 151, 153, 381 F.2d 930, 932 (1967). While the trial judge was obviously aware of this rule, we think he did not give effect to inferences reasonably to be drawn from appellant's case.

The judge concluded that negligence (whether of Izzo or Redding) in raising the hoist after decedent had been pinned was not established as the cause of death because decedent might already have been dead. Izzo's employee Williams admittedly saw Bowman dangling between the hoist and the ramp. If the jury were to believe the testimony of hoist operator Humphrey that Williams told him to raise the hoist, thereby unpinning Bowman and causing him to fall to his death, the facts would permit the jury to conclude a lack of reasonable care and bring in a verdict against Izzo. Contrariwise, if the jury believed that Williams only said "Hold it," as he testified, then Humphrey's action in raising the hoist in the face of a "hold" instruction from the person with vision of the hoist shaft, would provide a predicate for a verdict against Redding.

The general rule requires plaintiff in a negligence case to "prove sufficient facts, not only to warrant an inference of negligence, but also to justify an inference that such negligence was proximately related to the injury or death." Pennsylvania R. R. Co. v. Pomeroy, 99 U.S.App.D.C. 272, 281, 239 F.2d 435, 444 (1956), cert. denied, 353 U.S. 950, 77 S. Ct. 861, 1 L. Ed. 2d 859 (1957). *fn6 The trial judge ruled, and Izzo urges on appeal, that the jury could only speculate or conjecture as to whether Williams's behavior was a cause of Bowman's death because Bowman might already have been dead by the time Williams first saw him pinned between the hoist and the ramp. The same defense, if sound, would be applicable to Redding insofar as its liability is predicated on the act of the hoist operator.

Error in excluding the autopsy report

Appellant attempted to introduce into evidence the autopsy report and death certificate, which, appellant claims, showed no injuries that could be attributable to Bowman's having been pinned. The trial court refused to receive them into evidence. American case law is divided on the admissibility of such documents. Cases excluding them usually emphasize the hearsay nature of such evidence. Cases admitting them are usually based on statutes requiring public officials to keep such records and making them presumptive evidence of the facts stated therein. *fn7

This jurisdiction rejects the rule admitting these records in evidence automatically and as proof of all facts stated therein. Levy v. Vaughan, 42 App.D.C. 146 (1914); see also New York Life Ins. Co. v. Miller, 65 App.D.C. 129, 81 F.2d 263 (1935). However, in Labofish v. Berman, 60 App.D.C. 397, 55 F.2d 1022 (1932), we did attach significance to the fact that Congress has made death certificates public records and we said, "We think they may be offered in evidence for the purpose of proving, prima facie, the time, place, and cause of death." 60 App.D.C. at 399, 55 F.2d at 1024. A satisfactory reconciliation of the divergent approaches in Levy and Labofish was made in Miller, where we noted that "in the Labofish Case the statement in the certificate as to the cause of death was not made upon hearsay evidence but . . . by the attending physician." 65 App.D.C. at 134, 81 F.2d at 268. In the present case, the rejected autopsy report and death certificate's history of how the fall occurred are inadmissible under Levy, since they apparently rested on hearsay. But the autopsy report's "anatomical diagnosis" was not inadmissible, since it was based on direct examination of the deceased. It would be relevant to the question of the cause of death, which is a matter for jury determination when in doubt.Chesapeake Beach Ry. Co. v. Brez, 39 App.D.C. 58 (1912); Guenther v. Metropolitan R. R. Co., 23 App.D.C. 493 (1904). Cf. Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C. 322, 394 F.2d 947 (1968) (whether death was caused by shock treatment plus drug A, or by shock and a combination of drugs A and B). The rule is similar elsewhere. See, e.g., Emery v. Northern Pacific R. R. Co., 407 F.2d 109 (8th Cir. 1969) (Last clear chance).

General principle that plaintiff's claim of life continuing until terminated as a result of defendant's negligence presents jury question

We conclude that this case is governed by the general guiding principle that a plaintiff's claim that his decedent's life continued, until terminated as a result of defendant's negligence, presents a question for the jury. The principle is undergirded by the more broadly applicable doctrine that in cases where ...

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