Helen Hanna and Cicero Hanna v. Annie C. Fletcher, Trustee of the Estate of Florence Johnson, and Fred S. Gichner Iron Works, Inc. ( 1958 )

BAZELON, Circuit Judge.

In May 1949, the iron handrail of the outside steps of a house owned by appel-lee Fletcher gave way as Helen Hanna, a tenant, was using it for support. She fell off the steps into an areaway, suffering injuries which left her paralyzed. She and her husband brought suit in the District Court against Fletcher and the Fred S. Gichner Iron Works, Inc., a contractor to whose allegedly negligent repair of the railing in 1942 the plaintiffs attributed the accident.

On the first' trial, the District Court directed judgment for the defendants upon the opening statement of plaintiffs’ counsel. We reversed and remanded, holding that plaintiffs would be entitled to recover from both defendants if they could establish the allegations of the opening statement — that the accident was the proximate result of the contractor’s negligently executed repair job. Hanna v. Fletcher, 1956, 97 U.S.App.D.C. 310, 231 F.2d 469, 58 A.L.R.2d 847. Upon remand the District Court again directed judgment in favor of the defendants, this time at the conclusion of the plaintiffs’ case,¹ and the plaintiffs have again appealed. The issue now before us is whether the plaintiffs produced evidence from which the jury could have found the injury to have been proximately caused by negligence on the part of the contractor.

From the evidence introduced, the jury could have found the following facts:

1. The handrail was an iron pipe fitting into collars affixed to two hollow newel posts, one on the upper landing and the other on the bottom step. The lower newel post was fastened to the step by an anchor rod passing down through the post and through the step and nutted on the underside of the step.

2. The state of disrepair existing at the time of the 1942 repair job consisted, as the contractor knew or should have known, of the following:

a. The lower anchor rod had rusted through at its point of contact with the step.

b. The step was off-level, sloping down toward the rusted anchor rod.

c. The contact between the step and the newel post through which the rusted anchor rod passed was not sealed by calking, soldering or otherwise.

d. There was a hole in the upper collar through which moisture could enter and run down through the railing into the lower newel, accumulating at the point of contact between the anchor rod and the step.

3. The contractor’s repairs in 1942 consisted of cleaning away the accumulated rust, replacing the old anchor rod by a new one and re-assembling the railing and newel. The contractor did not level the step to prevent water drainage toward the newel. Nor did it seal the seam around the base of the newel. Nor did it close the hole in the upper collar.

4. The 1949 collapse of the railing, which caused Mrs. Hanna to fall, resulted from the rusting through of the anchor rod the contractor had installed in 1942, which caused the newel post to topple and the railing to fall out of the collars.

On the foregoing facts alone, if the jury had found them, it could have concluded that the 1949 accident was the proximate result of a negligent repair job performed by the contractor in 1942. It could have reasoned that the sloping step, the unsealed seam at the base of the newel post, and the hole in the upper collar, facilitated the access of moisture to the anchor rod and caused it to rust through more rapidly than if the step had been leveled, the seam sealed and the hole closed.

No expert testimony was needed to support a determination that the contractor’s omission to level the step, seal the seam and close the hole was a failure to use reasonable care in doing the repair job in 1942. But even if expert testimony were necessary to establish the standard of reasonable care, such testimony was given by the witness Locraft.² Similar testimony by the witness Vetterman, an iron worker and instructor in iron work at Bell Vocational School, was proffered, but rejected by the trial judge on the ground that the witness was not qualified as an expert in this case because he had worked on only one iron staircase precisely like the one here involved. We think the record shows the witness to be thoroughly qualified to express the sort of opinion sought to be elicited from him. The basis upon which his testimony was rejected was unduly restrictive and arbitrary.

We hold that it was error to take the case from the jury. We reverse the judgment and remand the case to the District Court for a new trial.

We think it unnecessary to rule on the numerous other alleged errors of which appellants complain. The District Court’s usual practice, with respect to a case remanded for a new trial, is not to assign it to the same judge. Hence the questions raised, which relate largely to evidentiary restrictions, may not arise.

Reversed and remanded.

1 . In what respects the plaintiffs’ showing was inadequate the trial judge did not say. His ruling was:

“Gentlemen, as I see it, it would be futile for me to attempt a review of the record which has been made in this court in the last seven days, and any effort to do ,so would certainly, be inadequate. I prefer to place my ruling squarely upon the record as it stands, and doing so, I must announce that the Court finds that the plaintiffs, there are two of them, have failed to make a prima facie case. Accordingly, the motion of each defendant against each plaintiff will be granted.”

2 . The trial judge subsequently ruled that the witness, a civil engineer and a member of the District of Columbia Commissioners’ Board of Unsafe Structures, was not qualified to give an opinion as to reasonable standard of repairs because his experience related mainly to new construction. We think the record shows the witness to be eminently qualified to give an opinion.