City of Knoxville, Tenn. v. Bailey

• Decision Date: 22 April 1955
• Docket Number: No. 12231,12232.,12231
• Citation: 222 F.2d 520
• Parties: CITY OF KNOXVILLE, TENN., Appellant, v. Mrs. Edna V. BAILEY, Appellee. DELTA AIR LINES, Inc., Appellant, v. Mrs. Edna V. BAILEY, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

222 F.2d 520 (1955)

CITY OF KNOXVILLE, TENN., Appellant, v. Mrs. Edna V. BAILEY, Appellee.

DELTA AIR LINES, Inc., Appellant, v. Mrs. Edna V. BAILEY, Appellee.

Nos. 12231, 12232.

United States Court of Appeals Sixth Circuit.

April 22, 1955.

COPYRIGHT MATERIAL OMITTED

Wilbur W. Piper, Knoxville, Tenn. (Foster D. Arnett, Knoxville, Tenn., on the brief; Fowler, Long & Fowler, Knoxville, Tenn., of counsel), for City of Knoxville.

Harvey Broome, Knoxville, Tenn. (S. F. Dye, Knoxville, Tenn., on the brief; Kramer, Dye, McNabb & Greenwood, Knoxville, Tenn., of counsel), for Delta Air Lines, Inc.

J. H. Doughty, Knoxville, Tenn. (Hodges & Doughty, Knoxville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

In this action, brought by Mrs. Edna V. Bailey for damages for personal injuries, a judgment for $30,000 on the verdict of a jury was entered in the district court against both defendants, the City of Knoxville and Delta Air Lines, Inc., now appellants. The judgment is unusual in form, in that it expressly provides that the award against the City of Knoxville "will be collected only from its insurance carrier, Great American Indemnity Company, New York," pursuant to a public liability policy issued by that company for the protection of the City of Knoxville. The judgment provides that this limitation will in no manner restrict the collection of the award against Delta Air Lines, Inc.

Mrs. Bailey was injured by falling, while attempting to descend from one platform or landing to another adjacent to the building at the municipal airport owned and operated by the City of Knoxville. The Delta Air Lines leased from the city space in the terminal building for customary commercial usage of an air line and, by contract with the city, used the airport facilities for the landing and taking off of its planes and for receiving and discharging its passengers. Mrs. Bailey entered the terminal building through the entrance provided, around seven o'clock in the evening when it was still light on a clear day in the latter part of June, with the intention of flying to Chicago an hour later aboard a passenger plane of the Delta Air Lines. She had already purchased her ticket at a downtown office. She was accompanied by her older sister and a niece, Mrs. Russell, who attended to checking her luggage.

The three ladies sat for a while within the terminal building but decided to go outside because of the extreme heat inside the building. They attempted to make their exit through the same door and over the same landings and steps by which they had entered. Upon reaching the six-inch drop from the first to the second landing, Mrs. Bailey fell to her right over the abutments to the stairs and thence several feet to the ground below. Her niece testified that, as Mrs. Bailey fell, she had her hands outstretched trying to grasp something. The entrance to the airport building was some five feet above the surface of the ground and was reached by means of a number of steps and landings constructed of tile.

In her complaint, appellee charged that the tile utilized in the construction of the steps and landings was uniform in size and color and was so blended that a person using the landings would be unable to differentiate between the various levels in making entrance to or exit from the building. It was averred that one landing, some six tiles in width, was flush with the level of the terminal floor; and that contiguous thereto, at a lower elevation, there was a second landing approximately nine tiles in width. The complaint charged that the two described landings were so laid and blended that persons utilizing the airport's facilities would believe that only one landing existed, when, as a matter of fact, there was a difference in elevation of about ten inches between the two.

The complaint charged that the situation described constituted "a dangerous pitfall or trap"; and that, though aware of existing conditions which had caused many people to be injured in consequence of the negligence in construction and maintenance of the landings, defendants had refused and neglected to place any warning signs near the landings and had wrongfully refused and neglected to put guards or handrails at or near the landings in such manner as to make safe entrance to the terminal building, or exit therefrom. The complaint averred further that, in making her exit upon the landing flush with the terminal floor, Mrs. Bailey continued to walk thereon in the belief that the lower landing, due to its aforementioned appearance, was of the same elevation as the first. Wherefore, she unexpectedly stepped to the lower landing and fell.

Mrs. Bailey was corroborated by a graduate engineer as to the appearance of the landing from which she stumbled. This witness testified that a person, standing inside the doorway of the terminal building and looking toward the outside, would find it very hard to tell that there is a six-inch step-down for the reason that the tile on the landings is of the same hue and color. The contractor who had installed the guardrail stated that he placed it four and one-half feet from where Mrs. Bailey stepped down, the guardrail being "intended solely to protect the people who were walking down the nine flights of stairs" and not to afford protection to anyone four and one-half feet away. Mrs. Bailey was at that distance from the handrail when she stumbled.

Two Delta Air Lines porters were eyewitnesses to the accident. One testified that Mrs. Bailey started to make her step at the step-off, "missed seeing it or couldn't see it, or didn't" and fell slantingly off the side of the porch. He stated that he had seen quite a few other people stumble at that first step-off. The other porter related that he was watching the three ladies as they came out of the terminal building; that they were walking slowly abreast over the first landing when Mrs. Bailey stumbled and fell to the right "plumb off to the ground"; and that he had jumped up and tried to catch her, but couldn't. He stated that he had seen a few other people stumble or fall at that particular step-down. He said further that the tile was "kind of reddish in color" and that if a person were coming out of the building, all the tile looked as if it were even.

An American Air Lines employee working at the airport also saw Mrs. Bailey fall. She was "tripping * * * like someone going off balance" when she was just past the first step, he said. The witness had observed some others receive "a jolt or unexpected shock by not anticipating that one step." Another American Air Lines worker, employed in the terminal building, was in his office on the ground floor; and, while he did not see Mrs. Bailey fall, he heard a thud and, when he looked out, saw the appellee lying prone on the ground. He previously had seen four or five people stumble at the step-off where Mrs. Bailey fell. He said that the step-off "wasn't easy to see * * * it didn't just flare up there when you came out. It was kind of hard to see unless you were looking for it."

A surgeon who had attended Mrs. Bailey professionally lived near the airport and was a frequent visitor there. Accompanied by Mrs. Bailey's son, he visited the airport the day after her accident. He testified that the step where she fell was "very poorly" observable by one coming out of the terminal building, for the reason that the "two platforms are identical in color and blend together" to give a "misguided sense of walking on level ground."

The niece who accompanied Mrs. Bailey testified that, when walking from inside the terminal building, the step-down could not be observed because the tile is all of the same color and gives the general appearance "of being just one straight place." She said that the guardrail starts farther down at the "real steps" some six feet away from the first step-down where Mrs. Bailey fell. The witness was positive in her statement that, to one coming out of the building and making an exit over the first landing, the tile, being the same color and pattern, "causes a mirage" and makes the landings look the same "all the way down." Mrs. Bailey's son took the stand and asserted that as a person looked outward across the two landings they "appeared to be level."

A taxi driver for the Knoxville Airport Transit Service Company was standing near the exit steps of the terminal building and saw Mrs. Bailey fall. According to his testimony, the three ladies walked out of the building side by side and, when Mrs. Bailey reached the end of the first landing, she staggered to the right and "fell off, trying to catch something" but was too far from the guardrail to do so. The witness was familiar with the landing where Mrs. Bailey fell and said that, because of the "red brick color" of the tile, it would appear to one going out of the building as if the landings were on one level until the main steps were reached. He had on two occasions before Mrs. Bailey's accident taken to a hospital persons injured by falling at the same place where she fell. Moreover, he had seen at least five more people stumble at the step-down in question.

A lady residing in Knoxville swore that, a short time before the appellee met her accident, the witness had fallen at the identical point on the landing where Mrs. Bailey fell. She said that as she walked out the door of the terminal building there appeared to be just one continuation of the reddish colored tile; that it looked as if she were "going to walk right out and not step down immediately." The lady's husband swore that, accompanied by the engineer to whose testimony reference has heretofore been made, he visited the airport for the purpose of making an inspection. He said that, looking from a door toward the outside, the red clay landings appeared to be on the same level. He went to the airport several times after his wife's fall...