Melton v. Greyhound Corporation, No. 21913.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON and COLEMAN, Circuit , and HUNTER
• Citation: 354 F.2d 970
• Parties: Ray MELTON, Appellant, v. The GREYHOUND CORPORATION, Appellee.
• Decision Date: 27 December 1965
• Docket Number: No. 21913.

354 F.2d 970 (1965)

Ray MELTON, Appellant,
v.
The GREYHOUND CORPORATION, Appellee.

No. 21913.

United States Court of Appeals Fifth Circuit.

December 27, 1965.

354 F.2d 971

John J. Watts, James D. Cunningham, by Clyde C. Bishop, Odessa, Tex., for appellant.

Allen R. Grambling, Hardie, Grambling, Sims & Galatzan, El Paso, Tex., for appellee.

Before HUTCHESON and COLEMAN, Circuit Judges, and HUNTER, District Judge.

HUTCHESON, Circuit Judge:

This is an appeal from a summary judgment against appellant Melton's personal injury claim. We conclude that controverted issues of material fact were presented in the court below and accordingly reverse and remand for trial.

Appellant Melton brought this suit against The Greyhound Corporation to recover for injuries sustained when he slipped and fell while traveling as a passenger on one of Greyhound's busses.¹ The fall occurred on April 7, 1962, at about 2:30 A.M. as Melton walked down the aisle of the bus from his seat in the rear to the restroom in the front. In his complaint Melton alleged negligence by Greyhound "in permitting an old rotten banana to remain upon the floor of its bus" and "in providing insufficient lighting to illuminate the aisle of the bus upon the occasion in question", each of which was allegedly "a proximate cause of the plaintiff's damages and injuries for which this suit is brought", and demanded a jury trial. Greyhound answered the complaint denying that it was negligent and asserting that any danger was open and obvious to Melton. By deposition Melton stated that he had stepped on some substance which caused him to slip and fall; that he did not know what the substance was, but it looked like a piece of rotten banana; and that he had no idea how long the substance had been on the floor of the bus prior to his fall. Melton described the lighting conditions on the bus as consisting of "real dim lights on the floor, shining down around the seats". Melton admitted having been down the aisle of the bus under the same lighting conditions several times before his fall. The driver of the bus testified in deposition that he did not see any slippery substance in the aisle either before or after the fall, and that the lighting on the bus at the time of the fall consisted of the usual nighttime aisle lights. Greyhound then

354 F.2d 972

sought² and obtained³ a summary judgment under Fed.R.Civ.P. 56.⁴

The general principles governing the motion for summary judgment are well established.⁵ In the leading case of Whitaker v. Coleman, 115 F.2d 305, 306-307 (5th Cir. 1940), this Court said:

"* * * The invoked procedure summary judgment, valuable as it is for striking through sham claims and defences which stand in the way of a direct approach to the truth of a case, was not intended to, it cannot deprive a litigant of, or at all encroach upon, his right to a jury trial.

* * * To proceed to summary judgment it is not sufficient then that the judge may not credit testimony profferred on a tendered issue. It must appear that there is no substantial evidence on it, that is, either that the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that conceding its truth, it is without legal probative force. * * *

* * * Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists. * * *"

As stated in Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944), "Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * where no genuine issue remains for trial, and * * * the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try."⁶ Important to the present case is the recognition by this Court "that as a general proposition the issue of negligence

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* * * is ordinarily not susceptible of summary adjudication", but should be resolved by trial in the ordinary manner. Alabama Great Southern R.R. v. Louisville & N. R.R., 224 F.2d 1, 5, 50 A.L.R.2d 1302 (5th Cir. 1955).⁷

A review of the record in this case demonstrates that genuine issues of material fact, precluding summary judgment, were presented to the court below. Appellant asserted two acts of negligence, permitting a slippery substance to remain on the floor of the bus and insufficient lighting. As to the first of these, the parties are agreed upon the controlling⁸ state law: appellant must establish that Greyhound either knew or should have known that the substance was on the floor and willfully...