Behnke v. City of Moberly

• Decision Date: 05 November 1951
• Docket Number: No. 21643,21643
• Citation: 243 S.W.2d 549
• Parties: BEHNKE v. CITY OF MOBERLY.
• Court: Missouri Court of Appeals

Page 549

243 S.W.2d 549

BEHNKE v. CITY OF MOBERLY.

No. 21643.

Kansas City Court of Appeals, Missouri.

Nov. 5, 1951.

Marion E. Lamb, Moberly, for appellant.

Hunter, Chamier & Motley, Moberly, for respondent.

DEW, Justice.

In this action the plaintiff (respondent) sued to recover damages to his airplane, alleged to have been caused by the defendant's negligence in failing to warn of a soft and muddy trech contiguous to the newly constructed concrete parking apron on defendant's airport, which trench was concealed by snow and into which plaintiff ran his airplane in attempting to park it. The verdict was for plaintiff for $300, and defendant has appealed from the judgment thereon.

The substance of plaintiff's petition is that defendant owned and operated the airport in question; that it had leased a hangar and certain buildings on the premises to one B. L. Laursen, reserving exclusive control of the remainder of the property; that defendant, during September and October, 1948, had constructed a concrete ramp or parking apron adjoining on the south the black top taxi strip in front of and south of the hangar; that on completion of such construction, defendant left a deep mud-filled trench immediately south of and alongside the edge of the newly constructed parking apron; that on December 25, 1948, plaintiff landed his plane on defendant's airport, accompanied by his wife and two children, and taxied it to the hangar, where his gasoline supply was replenished; that thereafter, when plaintiff taxied his plane toward a mooring position on the parking apron provided by the defendant, and while in the exercise of due care on his part, the nose of his plane dropped into the mud-filled trench, damaging his plane in the particulars described; that the airport was covered with snow, drifted so as to make the ground in that part appear level; that the plaintiff had no reason to anticipate the existence of the trench and was required to proceed beyond it in order properly to moor his plane; that defendant carelessly and negligently dug and left open the partially mud-filled trench with no guards or other warning signs of its existence; that such dangerous condition was known to defendant in adequate time prior to the date of the accident for the defendant, in the exercise of ordinary care, to have filled the trench with solid material or to have provided warning of its existence.

The answer denied the acts of negligence alleged, pleaded contributory negligence and, further, that the operation of the airport by the city was a governmental function out of which no cause of action for damages against the city can arise; that the extent of the parking area was a feature inherent in the plans adopted for its construction, not due to defendant's negligence in construction or maintenance, from which no liability can arise against defendant for plaintiff's failure to operate his plane thereon, and no duty existed on the part of defendant to erect signs or warnings to prevent plaintiff from straying off of the paved area; that if the portion along the edge of the concrete area was soft and muddy it was due to rain, snow and forces of nature over which defendant had no control; that plaintiff's use of the area was for his own pleasure and convenience, and he was a mere licensee.

Plaintiff's evidence tended to show that from the three paved runways of the airport there was a taxi strip 80 feet wide, paved with black top, leading to the hangar and offices at the east side of the property, near which are located gasoline pumps. On October 8, 1948, defendant leased the buildings to one B. L. Laursen, for the purpose of carrying on an aviation school, repairing, servicing and storing airplanes; that the lease required lessee to keep on hand and sell gasoline and oil. As rental the lessee was required to pay to defendant one cent a square foot of floor space rented; two cents for each gallon of aviation fuel sold on the premises, $1.20 out of each $1,000 of the gross receipts from lessee's operations (excluding fuel sales and repairs from hauling freight or passengers to or from the airport), plus city tax on cigarettes sold. Lessee was required to perform the duties of airport manager until supplanted by one named by the city. The lease was in effect on the date of the accident complained of. During the term of the lease the airport was open in the day time for the use of aircraft and no one had been known to be refused its facilities. Six or seven hundred planes arrived and left the airport in the course of a normal year.

The plaintiff testified that over a period of a year or more prior to the accident he had used the airport some ten times or more, and had parked his plane on the grass at the rear of the gasoline pumps or on the grass across the runway south of the hangar, where eye bolts and ropes were provided for mooring airplanes, and that he had purchased gasoline at the airport and used its facilities on those occasions. There was testimony that between October 18 and November 18, 1948, defendant constructed a concrete slab over this parking area, south of the hangar, 40 feet wide and 376 feet long, which was joined to the black top runway in front and south of the hangar and other buildings. The excavation for the concrete parking apron extended south beyond the concrete slab from four inches to two feet, to provide for the forms used in laying the concrete. The forms were later removed, leaving a trench along the south edge of the concrete from eight inches to two feet in depth. This trench was then filled with dirt.

There was evidence on the defendant's behalf that the trench was properly filled with dirt, and that it was packed down by use of the front wheel of a motor grader exerting pressure of 3,500 pounds. Evidence of some of the plaintiff's witnesses tended to dispute this. Plaintiff's witnesses testified that ten days before the accident it had rained for three hours; that the dirt in the trench had settled two or three inches below the concrete; that tail wheels of airplanes had purposely been sunk in the mudfilled trench to anchor the planes, and the holes made thereby had not been refilled; that it snowed on December 18th and 23rd, and that on December 25th there were three or four inches of snow over the airport, and drifted in certain places. On account of the snow there was nothing to indicate where the concrete ended and the mud-filled trench was situated, the trench being entirely concealed.

The plaintiff testified that on December 25th he and his wife and two small children landed at the airport; that they had gone to Moberly to visit his wife's relatives. He taxied his plane to the gasoline pumps near the hangar and purchased gasoline to fill his tank. He was not aware that the parking area had been paved and it was now completely covered with snow. On this occasion there being no help or facilities for pushing or pulling the plane into mooring position, and being unable to back his airplane by motor power, he shoveled the snow from the rear of the wheels and by hand backed his plane far enough from the pumps to proceed...