Melvin K. Hurst, Jr. v. S. H. Kress & Company, Aetna Insurance Company, Intervenor-Appellant

489 F.2d 168, 1974 U.S. App. LEXIS 10146
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 8, 1974
Docket73-1075
StatusPublished
Cited by2 cases

This text of 489 F.2d 168 (Melvin K. Hurst, Jr. v. S. H. Kress & Company, Aetna Insurance Company, Intervenor-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melvin K. Hurst, Jr. v. S. H. Kress & Company, Aetna Insurance Company, Intervenor-Appellant, 489 F.2d 168, 1974 U.S. App. LEXIS 10146 (5th Cir. 1974).

Opinions

WISDOM, Circuit Judge:

As this case demonstrates, special interrogatories are a mixed blessing.

In this personal injury suit, brought ' by the plaintiff-appellant, Melvin K. Hurst, Jr., against the def endants-appel-lees, S. H. Kress & Co., G. K. Properties, Inc., and Genesco, Inc., the jury returned a verdict in the form of answers to special interrogatories. One of the answers found that Hurst had “fail[ed] to keep a proper lookout” at the time of the accident in which he had suffered injury, and that “such failure was a proximate cause” of the injuries he suffered. On the basis of this part of the verdict, the trial judge entered judgment for the defendants. On appeal, Hurst and his co-appellant, intervenor Aetna Insurance Co.,1 attack the judgment on three grounds. They contend: (1) that the answer to the lookout question was not supported by sufficient evidence, and that the trial judge therefore erred in denying the plaintiff’s motion for judgment notwithstanding part of the verdict; (2) that the lookout answer is in irreconcilable conflict with one of the other answers returned by the jury, finding that “the manner in which Hurst proceeded at the time and place in question was [hot] negligence” and that “such negligence was [not] a proximate cause of his injuries”; and (3) that an affidavit signed by all twelve jurors after the return of the verdict established that the answer in question did not reflect the true intent of the jury,2 and that a new trial is therefore required. We agree with the first of these contentions, and therefore we reverse the judgment of the district court without reaching the other two contentions.

I.

Hurst’s injury occurred when Hurst fell from an equipment room on the fourth floor of Kress’s downtown Dallas [170]*170dimestore to the floor of another equipment room immediately below on the third floor.3 The plaintiff at the time was a salesman for the National Chem-Seareh Corporation, a company that sells a chemical used to prevent corrosion and that the formation of algae in air-conditioning equipment. On the day of the accident, Hurst had come to Kress store to service the air-conditioning equipment located in the fourth floor equipment room. Hurst went up to the fourth floor unaccompanied by any Kress personnel. This was a standard practice followed by Hurst and another National Chem-Search salesman, as well as by the employees of other companies responsible for servicing Kress’s air-conditioning equipment.

The physical conditions relevant to this ease were reproduced by means of a scale model prepared by a consulting engineer from plans and blueprints of the store as well as from physical inspections of the premises. This model was presented at trial, and displayed to this Court at oral argument. Briefly summarized, the relevant conditions were these. In the northeast corner of the fourth floor equipment room were two adjacent and identical doors. One, on the northern wall of the room, was the door leading from the equipment room to the stockroom occupying the rest of the store’s fourth floor. It was through this door that one usually passed when entering or leaving the equipment room. The other was situated at a ninety-degree angle from this first or “outside” door; this second or “inside” door was on one’s immediate right as one entered the equipment room from the stockroom. This door opened into a void dropping down to the third floor equipment room. There was a steel ladder, positioned at a 65-degree angle, on the third floor below leading from that floor to the fourth floor. The two doors were identical in appearance, and their knobs were only six inches apart.

The “inside” door was unmarked and unlocked. The area in the corner of the equipment room was dark when anybody entered or left the room, because the only light in the equipment room was an overhead light operated by a pull-cord droplight in the center of the room, and the corner was shielded from what little light came into the room through the windows.4 The areas into which both doors opened were also completely dark; the door to the stockroom opened into an aisle shielded off from light by a partition wall. The policy of the company was to require that the lights be turned off except when the room was being used.

The physical facts suggest and the jury could have reasonably inferred that the accident occurred when Hurst fell to the third floor through the “inside” door of the fourth floor. Hurst testified that his memory was considerably impaired as a result of the accident, and that he did not recall exactly how the accident had occurred. He remembered going to the Kress store, talking to someone in the manager’s office, proceeding up the elevator to the fourth floor, getting off there, and walking toward the equipment room. After that, he testified, he remembered nothing until he regained consciousness, two weeks after the accident, in Baylor Hospital. Hurst was found between four and five on the afternoon of the accident, lying face up, at [171]*171the bottom of the steel ladder. The pages of a National Chem-Seareh presentation catalogue Hurst carried with him were found scattered on the stairway and the floor below.

The engineer who had designed the model of the premises, had spent thirty years at accident investigation and reconstruction work. He testified at trial as to the position in which a man would be likely to be found if he took one step into the door by the steel ladder and then fell to the floor below. The position in which Hurst was found conformed exactly to the description given by the engineer.

As a result of the accident, Hurst suffered severe injuries, and will be a paraplegic the rest of his life.

The answers to interrogatories returned by the jury after trial were all favorable to the plaintiff, except the one answer concerning Hurst’s failure to maintain a proper lookout. In answering the interrogatories, the jury found specifically: (1) that at the time of his injuries Hurst enjoyed the status of an invitee on the Kress premises; (2) that at the time and place of the accident Kress maintained a dangerous condition on its premises and that it knew or should have known of that condition; (3) that Kress was negligent in failing to correct or failing to provide a reasonable warning of the condition, and that this negligence on Kress’s part was a proximate cause of Hurst’s injuries; (4) that Hurst did not voluntarily assume the risk of the dangerous condition; and (5) that Hurst suffered damages amounting to $450,000 as a result of the accident.

The answers at issue on this appeal were the answers to Questions No. 7 and No. 8. Question No. 7 read: “Do you find from a preponderance of the evidence that Hurst failed to keep a proper lookout at the time and place in question and that such failure was a proximate cause of the injuries and damages suffered by Hurst?” The jury answered, “He did fail and such failure was a proximate cause”. Question No. 8 read: “Do you find from a preponderance of the evidence that the manner in which Hurst proceeded at the time and place in question was negligence and such negligence was a proximate cause of his injuries and damages?” The jury answered, “It was not negligence or was not a proximate cause”. The plaintiff’s position, as noted above, is that the answer to Question No. 7 was not supported by any evidence; that the two answers are in such hopeless conflict that a new trial is required; and that the answer to Question No.

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Bluebook (online)
489 F.2d 168, 1974 U.S. App. LEXIS 10146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melvin-k-hurst-jr-v-s-h-kress-company-aetna-insurance-company-ca5-1974.