Allen v. Matson Navigation Company

• Decision Date: 05 June 1958
• Docket Number: No. 15463.,15463.
• Citation: 255 F.2d 273
• Parties: Elsie B. ALLEN, George D. Allen, Appellants, v. MATSON NAVIGATION COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

255 F.2d 273 (1958)

Elsie B. ALLEN, George D. Allen, Appellants, v. MATSON NAVIGATION COMPANY, a corporation, Appellee.

No. 15463.

United States Court of Appeals Ninth Circuit.

April 7, 1958.

Rehearing Denied June 5, 1958.

M. Mitchell Bourquin, Guernsey Carson, San Francisco, Cal., McCune, Hiaasen, Kelley & Crum, Carl A. Hiaasen, Fort Lauderdale, Fla., for appellant.

Brobeck, Phleger & Harrison, Samuel L. Holmes, San Francisco, Cal., for appellee.

Before STEPHENS, Chief Judge, and POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

The appellants, who are husband and wife, and residents and citizens of Florida, brought this action against appellee Matson Navigation Company, a California corporation, to recover damages resulting from a fall which Mrs. Allen suffered while a passenger upon the Matson Steamship Lurline.

Mrs. Allen sought damages for personal injuries received by her in the fall, and Mr. Allen sought recovery for sums expended for the care and treatment, and for the loss of the society, services and consortium of his wife. Upon trial before a jury a verdict was returned in favor of each plaintiff and judgments entered thereon. The defendant had moved for directed verdicts in its favor, upon which the court reserved ruling, and after verdict and judgment against it, it moved for judgment notwithstanding the verdict. The motion was granted, and judgment notwithstanding the verdict was entered. It is from that judgment that this appeal is taken.

Plaintiffs went to trial upon a complaint which alleged that on October 1, 1953, while the ship was being docked and berthed in San Francisco, and before the discharge of her passengers, and when plaintiffs were passing over a landing upon a stairway, Mrs. Allen slipped and fell and suffered the injuries complained of. These, it was alleged, were the direct and proximate result of defendant's negligent maintenance of the stairway and landing in a dangerous and excessively slippery condition.

The time and place of Mrs. Allen's fall was not a subject of controversy. Early on the morning of the day mentioned, the passengers were notified that they would land at San Francisco immediately following breakfast. When the Allens arrived at E deck for breakfast they were told that they would be obliged to go to the upper A deck to obtain their landing permits before they were served breakfast. Accordingly they went to A deck, waited in line for their permits, and then started to descend to E deck. Finding a large crowd waiting for the elevators they decided to walk down the stairway. Mr. Allen walking next to the railing and Mrs. Allen next to him. Both testified that either he was holding Mrs. Allen's arm or she was holding his as they descended the stairs. Midway between each deck as they walked down the stairs they came to a landing. While they were walking across one of these landings Mrs. Allen fell backward, her feet slipping out in front of her so she was thrown flat upon her back.

In support of her claim that the landing was unsafe because of an excessively slippery condition, the appellants relied upon the following evidence: the witness Johnson, a fellow townsman of the Allens, who with his wife had made the trip to Hawaii with them, described the location of the landing where Mrs. Allen fell and said that it was "slippery". He said:

"Q. (By Mr. Bourquin): Had you experienced any difficulty with your footing in crossing that landing on that morning or on earlier occasions when you crossed it? A. Well, I had had the sense of extreme caution in going down those steps not only that morning but other times.

"Q. What do you mean by that? A. Well, if you approach a slippery surface, naturally you have that sense of feeling of caution.

"Q. (By the Court): Well, was the surface slippery? A. I would say it was slippery. * * *

"Q. We want you to tell us, if you can, Mr. Johnson, was it just a little slippery or was it very slippery? What was it? A. I would say it was quite slippery."

Mrs. Allen testified that when she fell she had stepped from the stairs to this landing and was about half-way across it when her feet went out from under her and she fell flat upon her back. Both of her feet went up, and "I fell on my back". Describing the condition of the landing, she said:

"Q. Did you see or observe anything with respect to the condition of the stairs or the landing that morning now that you can tell us of before you fell? A. Just that I perceived that it was more or less shiny and slippery, and I realized I would have to use a little caution on it.

"Q. What do you mean when you say it was slippery? How was that apparent to you? A. Just to look at it — observation.

"Q. Had you noticed any such condition on the stair or landing on other occasions than that morning? A. Yes."

At one point in her testimony the court intervened saying: "Why don't you ask the witness, if I may suggest it to you, counsel, how it was, by what senses she determined the flooring was slippery, — by her eyesight, by her feeling or by whatever it is, what sense she used in perceiving the condition of the flooring, if that is what you are trying to get at?" Asked to answer that question suggested by the court, Mrs. Allen replied, "Not only looking at it, the high polish and slipperiness of it, but my feet when I stepped on it, I realized I would have to be careful, — the way my feet hit that flooring, I realized I would have to be careful." She went on to state that when she stepped on that flooring, "I would more or less slip."¹

Mr. Allen's description of the surface of the landing was as follows: "Well, it was always very highly polished and very smooth, and the morning I came down I noticed when I hit the last step coming down that I looked down to see whether I had any more steps to go, and I saw this was just as shiny, high glossed as anything could be and I slowed up my steps, cut my steps a little shorter when I started on the flat surface."

In describing his wife's fall, Mr. Allen said that both her feet flew out in front of her at the same time; she fell prone on her back, mostly on her hip. This was on the landing on the staircase between C and D decks. On cross-examination he testified that the landing was "awfully slippery"; and that the gloss on it was "high and shiny".²

A Mrs. Dykstra, a passenger on the ship who saw Mrs. Allen fall, said that Mrs. Allen's feet slipped out from under her and she fell with a thud, flat on her back, both feet flew forward together. She described the appearance of the surface of the landing as "extremely shiny."

The evidence further showed that the flooring of the landing where Mrs. Allen fell, as well as the stairs and the passage ways about the ship were covered with a rubber tile commonly used for such purposes; the floors of the lounge and the foyer of the ship were regularly mopped and waxed and buffed with a machine provided for that purpose; and the stairs and landings were swept and mopped. In its answer to interrogatories the defendant stated that "the stairway³ has been frequently mopped with water containing a small amount of Franklin's Rubber Gloss Cleaner and Ajax Cleanser has been used occasionally during such mopping. The water and cleaning substances have been applied * * * by means of a string mop. * * * The water and cleaning substances were then removed by the mop after the water had been wrung out of it."

The defendant called as an expert witness its marine engineer and naval architect who had drawn the specifications for the installation of the flooring and had supervised the work. He testified at some length with respect to the material known as rubber tile which had been used on this floor, saying that it was the most satisfactory type of flooring for such a ship, considering the factors of wear, appearance and safety; that such tile, in its original form without having wax or other dressing applied to it does not have a glossy surface, — a glossy appearance that gloss is associated with products added to the surface of tile such as wax, but as for the tile itself, it does not have a glossy surface, — a glossy appearance on rubber tile comes from waxing and dressings.

The naval architect also testified that while the rubber tile was impervious to water, yet floor dressings which contained petroleum products would penetrate minutely into the surface. By minutely he meant the matter of a "thousandth of an inch or so." Neither party produced any evidence as to the character or contents of the Franklin's Rubber Gloss Cleaner or the Ajax Cleanser that was used on the stairway and landings. The man who was second steward on the ship at the time of the accident and who had charge of the crew that cleaned the decks and stairways testified that the porters who cleaned the stairs and landings used a "detergent" in the water. "All they use is hot water and a detergent and nothing else to mop up the stairways and landings."⁴

The question is whether the evidence here described is such that a jury could properly draw an inference of negligence and of failure to exercise that degree of care which the law imposed upon the defendant. In discussing the question of the duty which the defendant owed to its passengers, all of the parties agreed that the law of California is to be applied. The trial court made a like assumption. We find it unnecessary to indicate any view as to whether in this the parties were correct for as we see it, no matter which law applies, the rule is the same, whether that of California, or that of the maritime law.⁵

Plainly enough as a carrier it was the duty of the defendant here to exercise extraordinary vigilance and the highest skill to secure the safe conveyance of the passengers. As stated in Pennsylvania Co. v. Roy, 102 U.S. 451, 456, 26 L.Ed. 141: "For the slightest negligence or fault in this regard, from which injury results to the passenger, the carrier is liable in damages." In...