Ricketson v. Seaboard Airline Railroad Company

Citation403 F.2d 836
Decision Date05 December 1968
Docket NumberNo. 25961.,25961.
PartiesThomas J. RICKETSON, Appellant, v. SEABOARD AIRLINE RAILROAD COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William Murrell, Jr., Orlando, Fla., Paul Kickliter, Tampa, Fla., for appellant.

Ronald D. McCall, John W. Boult, Tampa, Fla., Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, Fla., for appellee.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

AINSWORTH, Circuit Judge:

In this Florida diversity personal injury suit the District Judge directed a verdict for defendant at the close of all of the evidence. We must determine whether the evidence was sufficient to require submission to the jury for its verdict. Being satisfied that reasonable men could differ as to the conclusions to be reached on the facts and that the case therefore should have been sent to the jury for its ultimate verdict, we reverse and remand for a new trial.

Thomas J. Ricketson, appellant, employed as a bulldozer operator by Blocks Terminal on a dock owned and maintained by defendant Seaboard Airline Railroad Company, was injured when the bulldozer which he was operating slipped from the dock and fell into Tampa Bay, Florida, on February 23, 1966. His complaint alleged negligence by the defendant in maintaining and operating unsafe premises, which negligence proximately caused the accident. Defendant denied negligence and asserted the affirmative defenses of contributory negligence and assumption of risk.

The evidence shows that plaintiff's employer had contracted with defendant for the spreading of phosphate ore in the hold of the SS MANILA which was being loaded at defendant's dock on the day of the accident. Plaintiff's job was to load and level the phosphate in the hold of the ship. The dock is approximately six hundred feet long, and three entrances, one at each end and one in the middle, lead to it. The accident occurred at approximately the middle of the dock. At one side of the dock is an elevator containing the ore to be loaded, supported by steel stanchions which are eight to ten feet apart. In order for a bulldozer to traverse the dock, it is necessary that it be driven around the stanchions. This is a difficult operation. The stanchions are wider at the bottom than at the top. Nine inches of the sixteen-inch tractor tread must hang off the dock when the tractor moves around the stanchions. The overall width of the bulldozer and its blade is six feet, ten and a half inches. The dock is approximately five feet, one-half inch wide. In normal operation, the cleats of the bulldozer hang over the outside of the dock six or seven inches. By continual contact with ships berthed for loading the dock has become progressively narrow. Recoil springs under the dock have deteriorated from corrosion. The wooden planking of the dock itself, as a result of being "chewed up" from the steel cleats of bulldozers, is in need of repair. Plaintiff and other bulldozer operators had complained to his supervisor and to defendant's representative about the deteriorating condition of the dock.

On the morning of the accident it had been raining for two hours and the phosphate on the dock had become wet and slippery. Plaintiff brought his tractor to the land side of the elevator. Another bulldozer operator preceded him who continued to drive straight ahead, heading for the far entrance to the dock. Plaintiff, however, turned into the middle entrance to the dock and when he approached the place at which he was to go into the hold of the ship, he discovered that the dock had been "mashed in" to approximately three feet and it was impossible either to proceed or turn around because of the narrowness of the dock. He then attempted to back out at a slow rate. He cleared the first stanchion but when he reached the second one the tractor slipped from the dock and plunged into the bay.1 He testified that he had never seen the dock as narrow as it was on the day of the accident. Plaintiff had not operated a bulldozer for two or three weeks prior to the accident. During that time, however, he had been handling tarpaulins on vessels at the dock and it was necessary to traverse the dock to reach the ship.

Plaintiff had been operating a bulldozer at the same place for approximately eleven years, using the same type of tractor for approximately five years. Phosphate falls from the belt used in loading phosphate ships and plaintiff was accustomed to seeing the substance on the dock. He also knew that phosphate becomes slick after a rain which causes the bulldozer to slip. He knew that the dock would be slippery on the morning of the accident, but he did not pay too much attention to it as he had experienced slipping sensations in the past when there was a large amount of wet phosphate on the dock. He had gone forward over the same portion of the dock a few minutes before the accident.

Other witnesses testified in regard to the bad state of repair of the dock. One bulldozer operator had slipped off the dock at the same spot where plaintiff's accident occurred. One operator testified that when there was difficulty in going around the stanchions, the hook from the ship that picks up the bulldozers was used to hold the tractor while the operator went around the stanchion.

Defendant introduced a single witness, Verne Ebinger, a supervising stevedore for Blocks Terminal. He did not witness the accident but was on the scene shortly thereafter. He testified that ships coming alongside will bump, nudge or hit the dock, that this caused the indentation, and that this condition existed approximately three or four months before the accident, but that no repairs had been made during that time. Mr. Ebinger said that he had told all of the bulldozer operators that the dock had been pushed in at that point and had warned them to avoid using the center ramp. However, plaintiff and two other bulldozer operators testified that they had not been given any warning not to go on the ramp where the accident occurred.

The Trial Court should not direct a verdict unless both the facts and the inferences to be drawn therefrom point so strongly in favor of one party that the Court believes that reasonable men could not come to a different conclusion. See 5 Moore, Federal Practice ¶ 50.021, p. 2320. This standard has been expressed by this Court in various ways. In Herron v. Maryland Casualty Company, 5 Cir., 1965, 347 F.2d 357, 358, we said:

"The case should be submitted to the jury if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions."

Accord, Lyle v. R. N. Adams Construction Co., 5 Cir., 1968, 402 F.2d 323; McPherson v. Tamiami Trail Tours, Inc., 5 Cir., 1967, 383 F.2d 527; Mixon v. Atlantic Coast Line Railroad Company, 5 Cir., 1966, 370 F.2d 852; Wright, Federal Courts § 95 at 370.

In Swift & Co. v. Morgan & Sturdivant, 5 Cir., 1954, 214 F.2d 115, 116, 49 A.L.R.2d 924, we said:

"It is well settled law that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and what is the proximate cause of damages are questions of fact to be properly submitted to and determined by jurors from a consideration of all the attending facts and circumstances."

In General Portland Cement Company v. Walker, 5 Cir., 1961, 293 F. 2d 294, this test is succinctly expressed:

"A trial judge takes the decision
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    ...can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict. See Ricketson v. Seaboard Airline R. R. Co., 403 F.2d 836 (5th Cir. 1968). This means that the action of the trial court overruling the motion for judgment notwithstanding the verdict s......
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