Anglen v. Braniff Airways
| Decision Date | 05 November 1956 |
| Docket Number | No. 15529.,15529. |
| Parties | Charles A. ANGLEN, Appellant, v. BRANIFF AIRWAYS, Inc., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ed V. Sweeney, Monett, Mo. (Sylvan Bruner, Pittsburgh, Kan., was with him on the brief), for appellant.
Max A. Patten, Joplin, Mo. (Coyne & Patten, Joplin, Mo., were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and SANBORN and JOHNSEN, Circuit Judges.
This is an appeal from a judgment in a personal injury action tried to a jury. At the close of the plaintiff's (appellant's) evidence, the defendant (appellee) moved for a directed verdict. The motion was granted. From the ensuing judgment for the defendant, the plaintiff has appealed.
The complaint of the plaintiff is based upon the claim that while working at the Municipal Airport at Joplin, Missouri, where he was employed by the Southern Missouri Air Service in servicing planes, he fell from a plane and was injured as the result of using a defective ladder furnished by the defendant for use in servicing its planes, and that the fall and his injuries were due to the negligence of the defendant in failing to furnish a safe ladder, in failing to keep it in a safe condition, and in failing to warn the plaintiff that it was dangerous for him to use it.
The defendant denied that it was negligent in any of the respects asserted by the plaintiff, and alleged that whatever injuries he received as a result of the fall were due to his own negligence or to the assumed risks of his occupation.
The plaintiff's case consisted almost entirely of his own evidence. It was as follows:
From January, 1953, to April 30, 1954, he was working for the Southern Missouri Air Service, which had a contract with the City of Joplin to service all commercial aircraft using the Municipal Airport. The Airport was used by the defendant, Braniff Airways, Inc. (Braniff), and American Air Lines (American). The plaintiff was engaged in fueling and servicing their planes or ships. Two boys worked with him — Ronnie Smith and Warren Anderson. Braniff used Texas Company products. American used Phillips Petroleum products. Texaco products for Braniff planes were from a tank truck of the Texas Company, and Phillips products for American planes were from a Phillips Company truck. It was necessary to use a ladder in servicing planes. Braniff and American each furnished a ladder for use in servicing its planes. Braniff owned the ladder it furnished. The ladder was kept on the side of the Texaco truck. The ladder furnished by American was kept on the side of the Phillips truck. Neither the plaintiff nor Southern Missouri Air Service had any control over either of the ladders. Braniff and American had control over their respective ladders. The plaintiff had nothing to do with the repair or upkeep of the Braniff ladder. Whatever upkeep or repair was done on the Braniff ladder while the plaintiff was working at the Airport was done by Braniff employees. On one occasion such employees took the ladder off the truck and painted it together with other equipment. They once took the ladder and repaired a leatherette lacing near its top, where it rested against the wing of a plane. When the employees of Braniff took the ladder, they did not ask for permission.
To service Braniff planes, which carried gasoline in their wings, it was necessary to use the Braniff ladder to get onto the wing of the plane, which was about 8 feet from the ground. The ladder which Braniff furnished was a bridge type ladder. It had two legs, the steps strutted between. The ladder was about 10 feet long. The top of the ladder had a curve which rested against the wing when the ladder was in use. The base of the ladder was two steel triangular pegs about 3 or 4 inches long and about 5/8ths of an inch thick. At the bottom, these pieces of steel had originally been drawn out to a point, but, by the time the plaintiff went to work at the Airport, these pointed ends had been worn from use until they were rounded like the end of a broomstick. There was nothing on the bottom of the ladder, no cushion of any sort, just the bottom of the steel. The plaintiff used the ladder about once a day during the time that he was working at the Airport. When gassing a plane, he would place the ladder up against the wing of the plane. There was no hook or device of any sort to secure the top of the ladder to the wing, and there was nothing to secure the bottom of the ladder to the pavement on the loading ramp where the servicing was done. The ramp where the servicing was done was paved with concrete. The pavement, from years of use, had a residue of oil on it which caused the surface of the ramp to be slippery when the ramp was moist.
The ladder did not slip with the plaintiff prior to April 30, 1954, but it had, to his knowledge, slipped with Ronnie Smith shortly before Christmas, 1953. The plaintiff reported that incident to Braniff's manager, Mr. Celinsky, and asked him to get some rubber shoes or boots to make the ladder safe. Celinsky said that he would. He told the plaintiff to continue to use the ladder and that it was safe if used with reasonable caution. There was no other ladder available. The ladder slipped with Warren Anderson about February 15, 1954. The plaintiff reported this to Celinsky, who said he thought the ladder was safe enough and would not slip. The plaintiff continued to use the ladder, relying on Celinsky's judgment "because he was Braniff's manager, and it was his ladder."
On April 30, 1954, about 9 a.m., the plaintiff was servicing a Braniff plane. He used the Braniff ladder to climb to the wing. When he stepped from the wing to climb down, the ladder slipped from under him — the legs of the ladder slipped on the pavement, causing him to fall. There was nothing on the legs to hold them steady. The ladder which had been furnished by American for use in servicing its planes was equipped with rubber shoes, which would always hold. It was rubber shoes of this type, which were in general use on such ladders, that the plaintiff had asked Braniff's manager to put on Braniff's ladder.
Aside from the plaintiff's evidence, there was the testimony of Ronald L. Smith, who worked at the Airport with the plaintiff between January, 1953, and April, 1954. He testified that the ladder Braniff furnished for servicing its planes was not equipped with protective devices to prevent skidding; that it slipped with him; that he so reported to the plaintiff in November or December, 1953; that the ladder slipped with him (Smith) again about the first of April, 1954; that he reported that incident to the plaintiff and Celinsky, Braniff's manager; that the last time he (Smith) reported to Celinsky about the ladder slipping, which was about a month before the plaintiff's fall, Celinsky said he would try to take some favorable action, but nothing was done; that the ladder furnished by American was safer and had never slipped with him (Smith).
The defendant did not rest its case at the close of the plaintiff's evidence, but, as heretofore stated, moved for a directed verdict in its favor on the grounds that the evidence of ...
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