Smith v. Trans World Airlines, Inc.

• Decision Date: 04 June 1962
• Docket Number: No. 23543,23543
• Citation: 358 S.W.2d 91
• Parties: Marie SMITH, Respondent, v. TRANS WORLD AIRLINES, INC., a Corporation, Appellant.
• Court: Missouri Court of Appeals

Page 91

358 S.W.2d 91

Marie SMITH, Respondent, v. TRANS WORLD AIRLINES, INC., a Corporation, Appellant.

No. 23543.

Kansas City Court of Appeals, Missouri.

June 4, 1962.

Wm. A. Rundle Jr., F. Burck Bailey, Morrison, Hecker, Cozad & Morrison, Kansas City, for appellant.

Loomis & Lacy, J. M. Loomis, Kansas City, for respondent.

BROADDUS, Judge.

Plaintiff commenced this action by the filing of a petition for damages in the Circuit Court of Jackson County, Missouri, at Kansas City, against defendant Trans World Airlines, Inc., praying for damages for personal injuries in the amount of $7500. The case was tried before a jury and the Honorable Ben Terte, Judge of Division No. 9 of the Circuit Court of Jackson County, Missouri. The jury returned a verdict in favor of defendant upon which judgment was entered. On May 26, 1961, plaintiff filed her motion for a new trial which was sustained as to 'points 2 and 13' thereof on August 23, 1961, by the Honorable Harry A. Hall temporarily sitting as Judge of Division 9 for the purpose of hearing plaintiff's motion for a new trial during Judge Terte's absence due to illness. Defendant thereafter filed its notice of appeal to this court. The facts in brief are as follows:

On March 14, 1958, at approximately 6:55 P.M. plaintiff then 50 years of age, in company with her husband, Ray Smith, and a third party, Mr. W. A. Heller, boarded defendant's flight 143 at St. Louis, for a flight to Kansas City, Missouri. The aircraft plaintiff boarded was a Trans World Airlines Constellation. Plaintiff entered the aircraft at the rear and was met at the entranceway by a hostess. She inquired of the hostess as to where all three members of her party could find seats together and was informed that such seats could be had in the forward lounge. The forward lounge in this particular Constellation was in the foremost portion of the aircraft immediately behind the cockpit or flight deck and was separated from the main cabin by a galley or hostess working area. The forward lounge and galley were on a level 9 1/4 inches lower than the floor of the main cabin and divided from the main cabin by a bulkhead in the center of which is a door 22 inches wide and a step 9 1/4 inches high.

Plaintiff led the way forward along the main cabin aisle with no one in front of her, walking in a normal manner, with her husband, Ray Smith, immediately behind her and Mr. Heller (who did not testify in the case) behind him.

From this point the evidence of plaintiff and defendant was in direct conflict. It was plaintiff's evidence that upon reaching the door to the galley the door was closed concealing the step but she continued walking, looking straight ahead, and without breaking stride pushed the door open and fell through the door and down the step all in one motion.

As opposed to this testimony of plaintiff, one Mrs. Luther Fisher, who had been a passenger on the same flight, testified that she and her husband who was hospitalized at the time of the trial, were the first passengers to board Flight 143 that evening and that they had walked forward through the main cabin and galley to the lounge passing through the door in question and that the door was open. After reaching the lounge Mrs. Fisher testified she was still standing facing the entrance to the lounge and saw plaintiff and her party in the middle of the main cabin coming down the main aisle; that the next time she saw plaintiff was just before plaintiff came through the door and before she fell and that at this time plaintiff had her head turned to the left talking to her husband; that she came through the door 'flying'. It was witness Fisher's further testimony (in contradiction of plaintiff's testimony that she had opened the door herself) that the door to the galley was already open (revealing the step) as plaintiff approached and had not been opened by plaintiff. On cross-examination by plaintiff's counsel, the witness Fisher reiterated that the door was open at all times from the time she first saw plaintiff in the middle of the cabin until she fell; that the door was already open before plaintiff arrived at it.

In rubuttal plaintiff put Captain J. J. Frank, who was traveling as an additional crew member, on the stand. Captain Frank testified differently from either plaintiff or Mrs. Fisher in that he said he was walking behind plaintiff's party and that as plaintiff reached the door it was partly closed.

Plaintiff attributed her fall to unfamiliarity with the step arrangement in the aircraft and to inadequate lighting. It was undisputed at the trial that there were no signs indicating a step beyond the door, but the evidence as to lighting was in conflict with plaintiff's evidence to the effect that the lighting in the galley was inadequate and with the evidence of the defense to the effect that the aircraft was well lighted throughout. In addition to the general lighting there was a step light in the step riser which was lighted and which cast illumination upon the galley floor at the step and which could be seen even with the door partly closed.

Defendant's first contention is that the court erred in sustaining ground 2 of plaintiff's motion for new trial. That ground reads as follows:

'(2) That the Court erred in giving its Instruction No. 6 offered by defendant over plaintiff's objections for the reason that there was no evidence to support the requested findings of fact in said instruction'.

Instruction No. 6 was defendant's contributory negligence instruction and is as follows:

'The Court instructs the jury that it was the duty of the plaintiff, Marie Smith, in walking through defendant's airplane to exercise such care for her own safety as an ordinarily prudent person would use under the same or similar circumstances. If you find and believe from the evidence that defendant's airplane was unsafe in the particulars referred to in Instruction No. 1, if you so find, yet if you further find that plaintiff walked along the aisle of defendant's airplane and stepped through the open door, if you so find that the door was open, and into the galley or hostess working area before looking where she was stepping, if you so find, and if you further find that plaintiff in the exercise of ordinary care should have looked and should have seen the step mentioned in evidence before stepping through said door, so as to have recognized the danger to her of falling if she failed to heed its presence, if so, and if you find that plaintiff failed to look and see said step and recognize such danger to her, and if you find that such failure to look and see said step and recognize the danger was negligence, and if you find that such negligence directly contributed to cause the fall and injuries of which plaintiff complains, then plaintiff is not entitled to recover and your verdict must be for the defendant'.

A reading of the instruction discloses that the findings of fact called for by the instruction as a prerequisite to a finding of contributory negligence were: (a) That the door was open; (b) That plaintiff stepped through the door before looking where she was stepping and failed to see the step and recognize the danger.

According to the testimony of Mrs. Fisher the door was open not only at the time plaintiff stepped through it but at all times while plaintiff approached it. And that 'just before she (plaintiff) came through the door and before she fell * * * she appeared to be talking to her husband. She had her head turned to the left'. Supplementing this testimony was the further evidence that the aircraft was well lighted throughout together with an operating light in the riser of the step itself.

From the above it is clear that there was ample evidence upon which to base the instruction if, as asserted by defendant under its Point 2, the testimony of Mrs. Fisher should have remained in the case. Defendant states that Point as follows:

'The Court erred in sustaining Point 13 of Plaintiff's Motion for a New Trial Because Defendant's Answers to Plaintiff's Interrogatories Were Not Judicial Admissions and Did Not Preclude Defendant from Introducing Testimony from the Witness Fisher Which Conflicted with the Answers'.

As a part of the pre-trial discovery proceedings in this case plaintiff filed certain interrogatories which were answered under oath by defendant and read into evidence at the...