Atcheson v. Braniff Intern. Airways

• Decision Date: 13 July 1959
• Docket Number: No. 46958,No. 2,46958,2
• Citation: 327 S.W.2d 112
• Parties: Dorothy ATCHESON, Appellant, v. BRANIFF INTERNATIONAL AIRWAYS and the City of Kansas City, Missouri, Respondents
• Court: Missouri Supreme Court

Page 112

327 S.W.2d 112

Dorothy ATCHESON, Appellant, v. BRANIFF INTERNATIONAL AIRWAYS and the City of Kansas City Missouri, Respondents.

No. 46958.

Supreme Court of Missouri, Division No. 2.

July 13, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 14, 1959.

John M. Cleary, Kansas City, for appellant.

Harold T. VanDyke, Kansas City, Davis, Thomson, VanDyke & Fairchild, Kansas City, of counsel, for respondent Braniff International Airways.

Thomas J. Conway, Jr., Popham, Thompson, Popham, Mandell & Trusty, Kansas City, Mo., for respondent.

STOCKARD, Commissioner.

In her suit for $15,000 damages for the wrongful death of her husband, William H. Atcheson, plaintiff has appealed from the judgment entered in favor of Braniff International Airways (hereafter referred to as 'Braniff') and the City of Kansas City after the trial court sustained the respective motions of each defendant for a directed verdict at the end of plaintiff's evidence.

On August 14, 1956, Mr. Atcheson boarded a two-engine Convair passenger airplane at Tulsa, Oklahoma, to travel on what is termed flight 392 via Kansas City, Missouri, to Minneapolis. He was an experienced commercial airline traveler and had flown into the Kansas City airport many times. The flight arrived in Kansas City at 2:09 p. m. and the airplane was located at gate 5. It was scheduled to depart at 2:30 p. m. Mr. Atcheson left the airplane at Kansas City, but his reason for doing so and where he went is not known.

Braniff also operated flight 152 from Kansas City to Minneapolis, presumably over a route different from that of flight 392. It was scheduled to depart from gate 7 at 2:20 p. m. The airplane used on this flight was a DC-3 which is a smaller airplane than a Convair and has a different appearance when on the ground. The DC-3 was located more than 200 feet from the Convair and there was another airplane between them.

The passengers for flight 152 had been loaded. The doors of the airplane closed and the engines started. All service personnel were standing near the rear of the airplane except the 'agent in charge,' a person identified only as Mr. Henderson. He was standing about even with the tip of the left wing but forward of it about 20 or 25 feet. Mr. Henderson had 'saluted' the pilot (apparently facing the airplane which resulted in his back being toward the area of gate 7 and the baggage gate) when Mr. Atcheson suddenly ran very fast from gate 7 or the nearby baggage gate directly toward the front of the DC-3 airplane. It appeared to one witness that he may have had his hand raised motioning to the pilot. Mr. Henderson was the person nearest to him, and he 'motioned' or 'put up his hand' and 'yelled' for Mr. Atcheson to stop, and he also 'headed toward' him and 'ran behind' him in an effort to catch him, but Mr. Atcheson ran past him and directly into the whirling propeller of the DC-3 and was killed. The pilot first saw Mr. Atcheson when he was sixty to seventy feet from the airplane, and he immediately cut the switch to the engines. The propellers were revolving at 800 to 1,000 revolutions per minute, and when the switch is cut they slow or stop only from inertia. At the time Mr. Atcheson ran into the propeller it had slowed to 300 or 400 revolutions per minute. It is not known if Mr. Atcheson ran from gate 7 or the nearby baggage gate, but when the pilot first saw him he was in direct line with the baggage gate and was running in a straight line. As he ran toward the airplane he was looking toward the pilot and directly toward the propeller.

From photographs admitted into evidence it appears that an enclosed ramp for the travel of passengers to the various gates extends northward from the main terminal building. Gate 5 is nearer to the main building than gate 7, and the baggage gate is still farther north but close to gate 7. Painted on the hard surface of the area where the airplanes are located are well defined yellow lines forming a pathway leading from gate 7 to the place where passengers are to enter an airplane. The line of travel of Mr. Atcheson was outside of this painted pathway.

It was the practice at gate 7 to have a chain suspended across it until the departure of the flight was announced. The chain would then be taken down and the passengers permitted to board the airplane. After the 'last call' the chain would again be suspended across the gate. The witness who testified to this practice could not remember specifically whether or not the chain was suspended across gate 7 after the passengers were loaded on the day of the accident.

The pilot of the DC-3 made some tests after the accident and found that when revolving at 1,000 revolutions per minute it took the left propeller 15 seconds to stop after the switch was cut, and five seconds for the speed of the propeller to slow to 400 revolutions per minute. For a man to run 'slowly' from the baggage gate to the left propeller required seven seconds, and to cover the same distance at a 'normal' run required five and one-half seconds. However, Mr. Atcheson was running at a rate faster than 'normal.'

The Kansas City Municipal Airport is owned by the City of Kansas City, but there were no city employees nearby or who had anything to do with the preparation for flight of the DC-3 at gate 7.

Appellant introduced evidence to the effect that the public address system in the terminal building is difficult to understand, particularly in the barbershop and the restrooms, and that a whirling propeller, when viewed from certain angles, is difficult to see.

Appellant alleged in her petition that respondents were negligent in failing (a) 'to provide a safe place for deplaning and inplaning passengers at the said airport between flights, changing flights, and through flights,' (b) failing to provide 'adequate safeguarded, protected and marked passageways and walkways for passengers;' and (c) failure to warn the deceased 'of his obvious and immediate danger, when both defendants saw or could have seen plaintiff's decedent in a position of great peril to which he was oblivious.'

Appellant's first point is that 'the trial court erred in excluding or striking legal, competent, relevant and material testimony offered by the plaintiff.' This is insufficient to preserve anything for appellate review. Supreme Court Rule 1.08, 42 V.A.M.S.; Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726; Union Electric Company v. Levin, Mo.App., 304 S.W.2d 478. Both respondents filed a motion to dismiss the appeal, and appellant then filed an amended point as follows: 'The trial court erred in excluding or striking legal, competent, relevant and material testimony offered by the plaintiff, to-wit: '(a) Evidence was offered and excluded by the trial court that on the day following the accident a new chain was installed across gate 7 to deter passengers and others from going through it and (b) Testimony by an expert witness was also excluded that the practice of persons not employees of the airlines lines or the station being on the ramp was very lax.'

Supreme Court Rule 1.08(a) provides that the points in a brief 'shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder.' See also paragraph (d) of the Rule. The amended point does not in any way purport to show wherein and why the rulings were erroneous. The factual situation here clearly demonstrates not only the purpose but the soundness of the above requirements of the Rule.

As to part (a) of the amended point, appellant's witness Espinosa testified concerning the practice of suspending a chain across gate 7 after the passengers were loaded. Appellant's counsel then started to ask him about something that happened on the day following the accident and the court sustained an objection thereto on the ground that anything that happened on the day following the accident was inadmissible. Appellant's counsel then stated that he intended to show that on the day after the accident 'a chain was installed at gate 7 which had not existed before.' '[I]t is the general rule that, where a dangerous, defective, or improper place, method, or appliance is alleged to have resulted in an injury for which damages are sought to be recovered, evidence that, subsequent to the accident or injury complained of, changes or repairs thereof or thereto were made by the person charged or precautions to prevent recurrence of injury were taken by him, is inadmissible to show antecedent negligence or as an admission of negligence on the particular occasion in question * * * but such evidence may be admissible for other purposes, * * *.' 65 C.J.S. Negligence Sec. 225a; Hickey v. Kansas City Southern Railroad Company, Mo.Sup., 290 S.W.2d 58; Brule v. Mayflower Apartments Co., Mo.App., 113 S.W.2d 1058. If the offered testimony was admissible for 'other purposes' appellant has not attempted to state in her amended point, or even in her argument, what they are or why the offered testimony was not subject to the above general rule. Under such circumstances it is not incumbent upon the respondents to show why the testimony was not admissible for any purpose, and it is not the duty of this court to search for some purpose, not advanced by appellant, for which it might have been admissible.

The same situation exists as to part (b) of the amended point. Charles Dennis Daily, a former manager of the Kansas City Airport, testified that 'The condition at Municipal Airport has been very lax.' The trial court then struck out this opinion upon request of respondents. The only reason, if it may be called that, advanced by appellant in the argument why this testimony was admissible is that 'the witness had been qualified as an expert upon such matters and his opinion as an expert witness was admissible.' But assuming this witness was qualified as an expert on such matters, which...