Henry v. American Airlines, Inc.

• Decision Date: 03 March 1967
• Docket Number: No. 4122,4122
• Citation: 413 S.W.2d 123
• Parties: Charles E. HENRY et ux., Appellants, v. AMERICAN AIRLINES, INC., Appellee. . Eastland
• Court: Texas Court of Appeals

Page 123

413 S.W.2d 123

Charles E. HENRY et ux., Appellants, v. AMERICAN AIRLINES, INC., Appellee.

No. 4122.

Court of Civil Appeals of Texas Eastland.

March 3, 1967.

Rehearing Denied April 7, 1967.

Peticolas, Luscombe & Stephens, John B. Luscombe, Jr., El Paso, for appellants.

Kemp, Smith, White, Duncan & Hammond, Jack Ratliff, El Paso, for appellee.

GRISSOM, Chief Justice.

Charles E. Henry and wife sued American Airlines, Inc., for damages alleged to have been suffered when Mrs. Henry's crutch slipped on an 'oil slick' at the Nashville airport while the Henrys were about to board appellee's plane there en route from El Paso to Knoxville. Plaintiffs alleged that Mrs. Henry was crippled, having a fused right hip; that she was using crutches going toward defendant's plane, while other passengers surged about her, and, as she reached the stairs leading up to the plane, her left crutch slipped on an 'oil slick', a dangerous and hazardous condition at the foot of the stairs, causing her body to twist violently to maintain her balance and resulting in serious permanent bodily injury. The Henrys alleged that American Airlines was guilty of the following acts of negligence and that each was a proximate cause of Mrs. Henry's injury and damage:

(A) In falling to furnish Mrs. Henry reasonably safe premises for boarding its plane when it knew, or should have known, of the oil slick at the foot of the stairs;

(B) In failing to warn her of the existence of the oil slick when it knew, or should have known, of its existence, as a person exercising a high degree of care would have done under the same or similar circumstances;

(C) In failing to permit her to board the aircraft in advance of other passengers when it knew, or should have known, of her physical condition.

(D) In permitting other passengers to surge about her in boarding its aircraft, without affording her time to board the plane;

(E) In failing to post an employee at the foot of the stairway to aid passengers and

(F) In failing to place abrasive material over the 'oil slick.'

In the alternative, the Henrys alleged they were passengers on appellee's airline between El Paso, Texas and Knoxville, Tennessee on August 7, 1964, and that it was necessary to change planes at Nashville; that, upon arrival at Nashville, the Henrys awaited the departure of appellee's flight to Knoxville; that American Airlines had the management and control of the boarding of its passengers, in that, it had the management and control of the placing of its plane on the runway; management and control of placing the stairway; management and control of access to its plane, in that passengers were not permitted to board the plane until called; that when said flight was called for boarding Mrs. Henry proceeded in a careful and prudent manner from the airport building to the ramp, or stairs, to board its plane; that she was walking with the aid of crutches and as she was about to go up the stairs her left crutch suddenly slipped from under her causing her body to twist violently in an effort to regain her balance, severely wrenching her back and left hip and causing serious and permanent injury; that American owed Mrs . Henry, as a passenger, a high degree of care to furnish safe assess to its place; that by the defendant's management and control of the boarding of passengers it was in a position of superior knowledge concerning the condition of said access and, but for some act of negligence by appellee, better known to it, Mrs. Henry would not have been injured and that plaintiffs relied upon the doctrine of res ipsa loquitur.

A jury found (1) that Mrs. Henry was not injured; (2) that American placed the passenger loading ramp 'at or near an oil slick or smudge'; (3) that the condition of the oil slick or smudge did not prevent such place from being a reasonably safe place for Mrs. Henry to board the plane; that (6) Mrs. Henry did not slip on the oil slick or smudge; that (9) appellee did not fail to warn Mrs. Henry of the oil slick or smudge 'as a very cautious and prudent person would have done under the same or similar circumstances;' that (11) American did not know that Mrs. Henry was physically handicapped; that (12) American should not have discovered that she was physically handicapped in the exercise of a degree of care that a very careful and prudent person would have exercised under the same or similar circumstances; that (16) Mrs. Henry did not fail to keep a proper lookout for her own safety; that (18) Mr. Henry failed to properly assist his wife 'immediately prior to her loss of balance, if she did lose her balance;' that (19) the failure of Mr. Henry to properly assist his wife was negligence which (20) was a proximate cause of Mrs. Henry's injuries, 'if any;' that (21) Mrs. Henry did not know of the existence of the oil smudge before she lost her balance, 'if she lost her balance' that (23) Mrs. Henry did not know that the 'oil smudge was hazardous to persons on crutches, if it was'; that (24) the injuries, if any, suffered by Mrs. Henry were the result of an unavoidable accident. In answer to question (25), what sum of money would reasonably compensate Mrs. Henry for the injuries and damages, if any, which were a proximate result of the incident in question, the jury said 'none'. In other words, the jury found that Mrs. Henry didn't slip on the oil smudge; that she wasn't injured and that she suffered no damages. Based on said findings, the court rendered judgment that the Henrys take nothing. They have appealed.

Appellants' first point is that the court erred in refusing to submit to the jury appellants' requested issues submitting the doctrine of res ipsa loquitur because that theory of liability was raised by the pleadings and evidence. In support thereof the Henrys say they were passengers on American Airlines flight from El Paso to Knoxville and it was necessary to change planes at Nashville; that Mrs. Henry was crippled and walked with the aid of two aluminum crutches; that at Nashville they awaited their flight in the airport at facilities furnished by appellee; that they were required to remain in a waiting room furnished by appellee and were not permitted access to the plane until an attendant unlocked its door and permitted the passengers to board; that the plane was positioned on the runway by appellee and the loading ramp was placed in position by appellee; that appellee's crew had access to the plane for one-half hour before departure and for fifteen minutes before boarding by passengers; that there was an oil slick near the base of the stairs; that appellee called the flight for boarding, the Henrys proceeded out the runway to the stairs with Mrs. Henry ahead of her husband, who had fallen behind to protect her, since she was walking with the aid of crutches and, as she was about to mount the stairs, the tip of one crutch slipped on the oil smudge, she lost her balance, and as she fell she twisted her back and hip attempting to regain her balance but that she was saved from completely falling to the concrete by her husband catching her on the way down when shw was in approximately a sitting position; that the incident was promptly reported and soon after boarding Mrs. Henry began to feel pain, which became worse. The Henrys argue that at the time Mrs. Henry claims she slipped and was injured they were passengers and appellee owed her a high degree of care to furnish her with reasonably safe facilities, equipment and means of ingress and egress; that by their pleadings they gave notice to appellee that they would rely upon the doctrine of res ipsa loquitur; that the evidence established that the boarding was under the control and management of appellee, as was placement of the aircraft on the runway and placing of the gangplank; that it was uncontradicted that there was an oil slick near the base of the loading ramp and that they had no opportunity to see it before loading and no warning was given of its existence but that the access and approach to the plane were under appellee's management and control. Appellants say the principle which required the court to submit their requested issues submitting the case under the doctrine of res ipsa loquitur were announced in Honea v. Coca Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 969, 160 A.L.R. 1445, as follows:

'Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.'

The issues submitting the theory of res ipsa loquitur which appellants requested the court to submit inquired (1) whether the approach to the plane was under the management and control of appellee; (2) whether it failed to maintain its approach and access to its plane in a reasonably safe condition as a very cautious and prudent person would have under the same or similar circumstances and (3) whether such failure, if any, was a proximate cause of Mrs. Henry's injuries. The Henrys say the court erred in refusing to submit them because they were raised by the pleadings and evidence. They cite in support of that contention Montgomery Ward & Co. v. Scharrenbeck, Tex.Civ.App., 199 S.W.2d 830, affirmed 146 Tex. 153, 204 S.W.2d 508; Dallas Railway & Terminal Co. v. Clayton, Tex.Civ.App., 274 S.W.2d 422 (ref. n.r.e.); Mattox v. C. R. Anthony Company, Tex.Civ.App., 326 S.W.2d 740 (ref. n.r.e.) and Smith v. Koenning, Tex.Civ.App., 398 S.W.2d 411 (ref. n.r.e.).

Appellee says the court did not err in refusing to submit said issues; that appellants pleaded and attempted to prove in great detail that Mrs. Henry walked on the airport runway using crutches and...