Ricketson v. Seaboard Airline Railroad Company, 25961.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: WISDOM and AINSWORTH, Circuit , and JOHNSON
• Citation: 403 F.2d 836
• Parties: Thomas J. RICKETSON, Appellant, v. SEABOARD AIRLINE RAILROAD COMPANY, Appellee.
• Docket Number: No. 25961.,25961.
• Decision Date: 05 December 1968

403 F.2d 836 (1968)

Thomas J. RICKETSON, Appellant,
v.
SEABOARD AIRLINE RAILROAD COMPANY, Appellee.

No. 25961.

United States Court of Appeals Fifth Circuit.

November 15, 1968.

Rehearing Denied December 5, 1968.

403 F.2d 837

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

403 F.2d 838

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...