Citations
- 289 F.2d 571
Full opinion text
HARTIGAN, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered for the plaintiff pursuant to a jury verdict.
Plaintiff, Jesse Costa, Jr., commenced a tort action in the state court alleging that he was injured by reason of the negligence of the defendant, Hercules Powder Company, (hereinafter called Hercules) while he was on the premises owned by Hercules. The action was removed by Hercules to the federal court. Hercules in its substitute answer denied negligence on its part and said that “if the plaintiff was injured as alleged, his injury was the result of his own negligence” and he could not recover. Hercules also set forth a counterclaim against plaintiff for goods sold and delivered.
The testimony given by the plaintiff relating to the accident may be briefly summarized as follows. Plaintiff was, at the invitation of Hercules, on the premises to arrange for the purchase of scrap metal. He was told by Hercules’ maintenance foreman, Henry Holmgren, to go upstairs and see certain evaporators if he wanted to. Holmgren said “go up these stairs.” At the foot of these stairs plaintiff met two employees of Hercules coming down. Plaintiff went up the stairs concerning which he testified: “It was light. It wasn’t too light. It was enough, you could see, you know, it wasn’t too light, it wasn't too dark.” Plaintiff also testified: “I noticed some, in the middle of the stairs up, I noticed a few pieces of asbestos. There was a couple of other objects there.” On cross-examination he testified:
“XQ. On the stairs as you went up you observed that there was debris on the stairs? A. Yes.
“XQ. There were pieces of asbestos? A. Yes.
“XQ. And some nuts and bolts? A. There wasn’t many of them, no.
“XQ. There was some? A. Yes, there was.
“The Court: What did you see ?
“The Witness: I saw some asbestos, and some bolts on the stairs.
“The Court: You did see some bolts ?
“The Witness: Yes.
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“XQ. You took a step down. Your foot struck a bolt, went out from you and you went down. Is that right? A. Yes.
“The Court: You didn’t see the bolt?
“The Witness: I did not see it when I stepped on it.
“The Court: You do not know whether it was a bolt or not. The reason I ask, when you were asked on direct examination you said you stepped on some hard object.
“The Witness: I didn’t see it when I stepped on it, no, your Honor.
“XQ. It was some object which, as I understood your testimony, it rolled under your foot. A. Yes.
“XQ. Like a bolt would? A. It was hard and round.
“XQ. Like a bolt? A. Yes.”
Plaintiff further testified that he was upstairs looking at the evaporators around 15 or 20 minutes. As to what happened then he said:
“Well, after I had looked the evaporators over I thought it was time to go down to see Mr. Holmgren again. As I put my foot down on the first step, I stepped on a hard object and it took my foot from under me, it rolled under my foot.
“At first I put my hand out, I had climbed the stairs many a time, to hold my hand on the rail. My hand slipped on the rail, as my foot was rolling, I made two complete somersaults down the steps.”
We believe that no matter how much plaintiff would be entitled to rely on the specific invitation of Holmgren t