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    Joseph W. Harner v. John McShain Inc., of Maryland, A Corporation, 394 F.2d 480, 4th Cir. (1968)

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    This document summarizes a court case in which Joseph Harner sued John McShain, Inc. for negligence after falling through an uncompleted floor at a construction site. A jury found for Harner and awarded damages, but the trial judge later overturned this verdict, finding Harner contributorily negligent. The appellate court summarized the evidence presented at trial, including testimony that employees regularly walked on the incomplete flooring. The appellate court determined that whether the danger was obvious or Harner should have seen it was a question for the jury to decide, so it reversed the trial court's ruling and reinstated the original jury verdict in Harner's favor.

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    Joseph W. Harner v. John McShain Inc., of Maryland, A Corporation, 394 F.2d 480, 4th Cir. (1968)

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    27 views3 pages
    This document summarizes a court case in which Joseph Harner sued John McShain, Inc. for negligence after falling through an uncompleted floor at a construction site. A jury found for Harner and awarded damages, but the trial judge later overturned this verdict, finding Harner contributorily negligent. The appellate court summarized the evidence presented at trial, including testimony that employees regularly walked on the incomplete flooring. The appellate court determined that whether the danger was obvious or Harner should have seen it was a question for the jury to decide, so it reversed the trial court's ruling and reinstated the original jury verdict in Harner's favor.

    Original Description:

    Filed: 1968-04-30 Precedential Status: Precedential Citations: 394 F.2d 480 Docket: 11933_1

    Original Title

    Joseph W. Harner v. John McShain Inc., of Maryland, a Corporation, 394 F.2d 480, 4th Cir. (1968)

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    This document summarizes a court case in which Joseph Harner sued John McShain, Inc. for negligence after falling through an uncompleted floor at a construction site. A jury found for Harner and awarded damages, but the trial judge later overturned this verdict, finding Harner contributorily negligent. The appellate court summarized the evidence presented at trial, including testimony that employees regularly walked on the incomplete flooring. The appellate court determined that whether the danger was obvious or Harner should have seen it was a question for the jury to decide, so it reversed the trial court's ruling and reinstated the original jury verdict in Harner's favor.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    27 views3 pages

    Joseph W. Harner v. John McShain Inc., of Maryland, A Corporation, 394 F.2d 480, 4th Cir. (1968)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which Joseph Harner sued John McShain, Inc. for negligence after falling through an uncompleted floor at a construction site. A jury found for Harner and awarded damages, but the trial judge later overturned this verdict, finding Harner contributorily negligent. The appellate court summarized the evidence presented at trial, including testimony that employees regularly walked on the incomplete flooring. The appellate court determined that whether the danger was obvious or Harner should have seen it was a question for the jury to decide, so it reversed the trial court's ruling and reinstated the original jury verdict in Harner's favor.

    Copyright:

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    of 3

    394 F.

    2d 480

    Joseph W. HARNER, Appellant,


    v.
    JOHN McSHAIN, INC., OF MARYLAND, a corporation,
    Appellee.
    No. 11933.

    United States Court of Appeals Fourth Circuit.


    Argued March 8, 1968.
    Decided April 30, 1968.

    Clark B. Frame, Morgantown, W. Va. (Joseph W. Harner, in pro. per., on


    brief), for appellant.
    Albert M. Morgan, Morgantown, W. Va., for appellee.
    Before BRYAN and CRAVEN, Circuit Judges, and MacKENZIE, District
    judge.
    CRAVEN, Circuit Judge:

    This is a negligence action brought in a West Virginia state court and removed
    to the federal district court by reason of diversity of citizenship. The sole issue
    presented on appeal is whether the plaintiff was guilty of contributory
    negligence 'as a matter of law.'

    The case was tried before a jury which returned a verdict in favor of the
    plaintiff for $8,000. The trial judge thereafter set the verdict aside and entered
    judgment n.o.v. for the defendant. Fed.R.Civ.P. 50(b). In so doing the trial
    judge stated that he had no trouble in finding ample evidence to support the
    jury's finding of negligence. But as to the issue of contributory negligence he
    concluded 'that the plaintiff did not on the occasion of the accident exercise the
    degree of care for his own safety that an ordinarily prudent person would have
    exercised in like or similar circumstances.' We do not agree that failure to
    exercise due care was the only permissible inference and reverse.

    On June 13, 1966, Mr. Harner, a construction painter by trade, was injured

    On June 13, 1966, Mr. Harner, a construction painter by trade, was injured
    when he fell through uncompleted flooring on the top floor of a three story
    building then under construction. On this floor steel joists had been laid
    approximately two feet apart at right angles to the heavier I-beams and had
    been welded into the I-beams. Then sheets of perforated steel lathe, two feet
    wide and six to twelve feet long, had been laid perpendicular to and on top of
    the joists. The lathe was laid so that it overlapped and completely covered the
    joists. In four places per sheet, the edge of the lathe had been wired down to the
    nearest joist with 16 gauge galvanized wire which is thirty-six inches long and
    doubled. The floor in question had been only partially lathed. The last sheet of
    lathe (bordering on the unlathed area) had been laid so that it fell approximately
    one and onehalf inches short of the joist next to the unlathed area. This sheet
    had not been wired down to the joist. Consequently, as one of the witnesses put
    it, anyone who stepped on the last sheet of lathe would fall through it as
    through a trap door.

    In the couse of his duties Mr. Harner walked across the unlathed area of the
    floor on an I-beam, going in the direction of the lathed area. When he reached
    the lathed area, he stepped out diagonally onto the unwired sheet of lathe and
    fell through. It was established, as previously indicated, that defendant was
    guilty of negligence proximately causing plaintiff's injury in failing to wire the
    last sheet of lathe to the adjacent joist.

    In finding Mr. Harner contributorily negligent 'as a matter of law,' the trial
    judge properly referred to the West Virginia substantive rule that an invitee
    entering on the premises of another has a duty to discover open and obvious
    dangers. Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961). However,
    we can find no West Virginia decision where, on facts comparable to the
    situation before us, the plaintiff was found to have been guilty of contributory
    negligence as 'a matter of law.' 'The ruling will, in truth, depend entirely on the
    nature of the evidence offered in the case at hand; and it is seldom possible that
    a ruling can serve as a precedent.' 9 Wigmore, Evidence 2494, at 296 (3d Ed.
    1940).

    A brief narration of the evidence most favorable to the plaintiff, Grombach v.


    Oerlikon Toll and Arms Corp. of America, 276 F.2d 155 (4th Cir. 1960), will
    suffice to show that whether the danger was open and visible or whether
    plaintiff in the exercise of due care should have seen it, is a question upon
    which reasonable minds may differ.

    Mr. Thorne, general superintendent for the appellee, testified that he saw 'many
    employees of all crafts walking over the lathe,' and that he could not recall ever

    warning anyone not to walk on it. The superintendent for Somerset Steel
    Erection Company, the steel subcontractor, testified that when the 'lathers' left
    for lunch or quit work in a particular area they would wire down the lathe laid
    so as to make the area safe. Upon questioning by the trial court whether he
    could have seen the absence of tie wires had he looked, Mr. Harner replied: 'I
    doubt it for you would have to look pretty close. You've got black mesh, you've
    got a black bar joist, and you take half an inch-- I wouldn't have seen it unless I
    got down real low and looked.'
    8

    The question of contributory negligence in this case is not a question of law but
    is simply a question of opinion or judgment in regard to a particular set of facts.
    See 9 Wigmo, Evidence 2495 (3rd Ed. 1940). In a landmark decision generally
    interpreted as broadening the right of jury determination in close cases, (See
    Planters Mfg. Co. v. Protect. Mut. Insurance Company, 5 Cir., 380 F.2d 869
    (1967)) the Supreme Court said: 'whenever facts are in dispute or the evidence
    is such that fair-minded men may draw different inferences, a measure of
    speculation and conjecture is required on the part of those whose duty it is to
    settle the dispute by choosing what seems to them to be the most reasonable
    inference.' Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946).
    And on another occasion, where the jury could reasonably have reached an
    opposite result, the Court said: 'There was evidence from which a jury could
    reach the conclusion that petitioner was totally and permanently disabled. That
    was enough.' Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945
    (1941).

    'In federal courts, at least, the Seventh Amendment writes into the basic charter
    the belief that trial by jury is the normal and preferable mode of disposing of
    issues of fact in civil cases * * *. The Supreme Court has been zealous to
    safeguard, perhaps even to enlarge, the function of the jury.' Wright, Federal
    Courts 92 at 350 (1963).

    10

    That the district judge's viewpoint on the issue of contributory negligence was
    an entirely reasonable one does not matter. There was substantial evidence
    supporting the opposite conclusion and that was enough to require leaving to
    the jury the partly speculative and conjectural task of choosing between
    permissible inferences.

    11

    On remand the district court will reinstate the verdict.

    12

    Reversed.

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