Kozman v. Trans World Airlines, 330

• Decision Date: 06 August 1956
• Docket Number: Docket 23982.,No. 330,330
• Citation: 236 F.2d 527
• Parties: Steve KOZMAN, Plaintiff-Appellant, v. TRANS WORLD AIRLINES, Inc., Defendant-Appellant, and Allied Maintenance Corporation, Third-Party Defendant-Appellant, and Allied Cleaning Contractors, Inc., Fourth-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

236 F.2d 527 (1956)

Steve KOZMAN, Plaintiff-Appellant, v. TRANS WORLD AIRLINES, Inc., Defendant-Appellant, and Allied Maintenance Corporation, Third-Party Defendant-Appellant, and Allied Cleaning Contractors, Inc., Fourth-Party Defendant-Appellant.

No. 330, Docket 23982.

United States Court of Appeals Second Circuit.

Argued May 9, 1956.

Decided August 6, 1956.

COPYRIGHT MATERIAL OMITTED

Joseph B. Sansone and Max J. Miller, New York City, for Steve Kozman, plaintiff-appellant.

John G. Reilly, New York City (Bigham, Englar, Jones & Houston, Robert F. Ewald, and Harold V. McCoy, New York City, on the brief), for Trans World Airlines, Inc., defendant-appellant.

Keith Brown, New York City (Mendes & Mount and Kenneth R. Thompson, New York City, on the brief), for Allied Maintenance Corporation, third-party defendant-appellant.

Raymond C. Green, New York City (Bernard Katzen, Harry Schechter, and William H. Stieglitz, New York City, on the brief), for Allied Cleaning Contractors, Inc., fourth-party defendant-appellant.

Sidney Goldstein, New York City (Daniel B. Goldberg, Joseph Lesser, and Patrick J. Falvey, New York City, on the brief), for The Port of New York Authority as amicus curiae.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

CLARK, Chief Judge.

These are appeals by all four parties to an action by plaintiff Kozman for damages for personal injuries resulting from his fall from a ladder while engaged in cleaning the windows of a door of a TWA hangar located at LaGuardia Airport in New York City. Originally Kozman, a window cleaner employed by Allied Cleaning Contractors, Inc., commenced an action in the Supreme Court of New York against TWA, which maintained, managed, operated, and controlled the hangar in question pursuant to a lease, originally from the owner of the airport, the City of New York, later assigned to the Port of New York Authority. Kozman alleged that TWA negligently, suddenly, and without warning revved up all four engines of one of its airplanes with such force as to cause the air current and sound blast engendered by this action "suddenly and violently to blow, push and propel the plaintiff and the top of the ladder on which plaintiff was standing to one side and thereafter to cause the top of the ladder to slip away from the point at which it rested against the said door and thereafter to dislodge the plaintiff and cause him to be hurled suddenly and violently to the ground below."

After removal of the action to the United States District Court because of the diverse citizenship of the parties, TWA moved to implead Allied Maintenance Corporation, its window cleaning contractor, as a third-party defendant on the basis of the indemnity provisions of the contract between these two parties.¹ TWA alleged that Allied Maintenance had violated N. Y. Labor Law, McK. Consol.Laws, c. 31, § 202 by allowing Kozman to use an ordinary window cleaner's ladder to do his work, instead of making him use a telescoping scaffold which TWA had supplied and provided in accordance with the contract.

Thereafter Kozman served an amended complaint in which he repeated the allegations of his original complaint for common law negligence and added a second "cause of action" wherein he repeated his first "cause of action" and further alleged that TWA had violated §§ 28, 29, 30, 202, and 240 of the N. Y. Labor Law, and the Rules of the Board of Standards and Appeals promulgated pursuant to those sections, by failing to provide him with any safety device of any kind or nature within the purview of those sections. TWA denied the material allegations of Kozman's complaint and served an amended third-party complaint which was identical with its original third-party complaint. Allied Maintenance, in addition to denying the material allegations of both Kozman's and TWA's amended complaints, served a fourth-party complaint upon Allied Cleaning seeking indemnity and alleging that Allied Maintenance sublet the window cleaning contract to Allied Cleaning, for which plaintiff was working.

After trial before Judge Noonan and a jury both "causes of action" were submitted for consideration of the jury, which returned a verdict for TWA on the first "cause of action," and for Kozman on the second. In turn the jury granted recovery over by TWA against Allied Maintenance, and by Allied Maintenance against Allied Cleaning — all in the amount of $17,000 and costs. This appeal from the resulting judgment followed.

The Facts

At 10:30-11:00 a.m. on December 15, 1950, Kozman, an experienced professional window cleaner, was cleaning the lower window panes of TWA's hangar door. He was standing about 10 feet up on an ordinary three-section window cleaner's ladder having an over-all extended length of about 18 feet. The ladder was not equipped with rubber "boots" or "shoes" on its lower extremities. Nor were the windows equipped with anchors to which might be attached safety belts for the cleaners, though the use of such safety devices appears not to have been practicable here.

Adjacent to the hangar doors and running the entire length of the hangar was a strip of level concrete or hard surfacing 4 to 5 feet wide, beyond which the surface began to slant downward to some extent. Prior to mounting the ladder Kozman had placed its feet on the concrete strip about 3 to 3½ feet away from the hangar doors. No one was holding the ladder on the day of the accident, although Kozman testified that it was customary to have a co-worker hold the bottom of the ladder if conditions were such that it might slip. The day before, when he was working on an extension ladder 40 to 44 feet in length, he had had another worker holding the bottom of the ladder.

A Weather Bureau Report introduced into evidence showed that some snow had been falling during the 2½ hours preceding the accident. At 10:40 a.m. occasional snowflakes were falling, possibly accompanied by light rain.

The day before the accident there was testimony that TWA employees had moved aircraft in and out of its hangars by jeep and had warmed up engines near the hangars, but had not created too much "power to the wind." Kozman could observe and feel the extent and strength of the draft thus created by the manner in which it blew against the hangar doors and by the "shaking and rattling" of the doors. There was some evidence that on the preceding day and on other occasions TWA employees warned the window cleaners when aircraft were to be warmed up in the vicinity, but most of this proffered evidence of a prior custom of warning was excluded by the trial judge.

The accident occurred while Kozman was cleaning a window with his right hand and was holding the side of the ladder with his left. His pail of water was suspended from a rung of the ladder. He testified that suddenly and without warning to him "* * * a big noise came out from the four motors of the TWA airplane, and all of a sudden a great wind like a hurricane hit me, and the doors was shaking and rattling. The top of the ladder blew off on the right side glass and kept on bouncing down. I grabbed my hands around the ladder and down I went." And a TWA maintenance foreman testified that at about the time of the fall all four engines of a TWA aircraft were being warmed up near the hangars prior to its departure for the marine terminal.

The evidence is clear that the top of the ladder slipped. Whether the bottom also slipped is not at all clear, although at one point Kozman testified categorically that the bottom did not slip. Still the sequence of questions and answers in which this denial appears, read as a whole, seems to leave the issue still in doubt; and at any rate Kozman, who was standing well up on the ladder, could hardly have known what happened to its feet.

The First "Cause of Action"

Although a new trial is not necessary in view of the plaintiff's ultimate recovery, we think the trial court erred in two regards with respect to the first "cause of action" against TWA for suddenly and negligently revving up its engines. First it was error to exclude evidence of a custom or habit on the part of TWA's employees to warn the window washers at the hangar of the proposed operation. This evidence was not offered to show a habit or custom of negligence, but to show a custom of care, the breach of which on the day of the accident constituted negligence. See Mahoney v. New York Central R. R., 2 Cir., 234 F.2d 923; Renaldi v. New York, New Haven & Hartford R. Co., 2 Cir., 230 F.2d 841; Cereste v. New York, New Haven & Hartford R. Co., 2 Cir., 231 F.2d 50, certiorari denied New York, New Haven & Hartford R. Co. v. Cereste, 351 U.S. 951, 76 S.Ct. 848; Eaton v. Bass, 6 Cir., 214 F.2d 896. Thus it was admissible as relevant to the standard of care which a reasonable and prudent man would exercise under the circumstances. In addition it was clearly relevant to show absence of contributory negligence and probably of assumption of risk, since plaintiff's own standard of care would be affected by reasonable reliance on a customary warning by defendant. See also Davis v. Central Vermont Ry., 2 Cir., 227 F.2d 948.

Further, the charge on assumption of the risk was erroneous and prejudicial. The court charged in part as follows:

"Should you find that the job then being done contained certain hazards of which the plaintiff knew or should have known in the exercise of reasonable care when he undertook to do the job, and that he nevertheless assumed the risk of those hazards and was thereby injured, then you should find for the defendant TWA against the plaintiff on the latter\'s cause of action.

"If, however, you should find that the plaintiff was not himself negligent and did not assume the risk of what befell him and at the same time you find that the defendant TWA was in fact negligent and that this negligence was the proximate cause of the plaintiff\'s injuries, then you should return a verdict in favor of the

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