Urban v. Frontier Air Lines, Civ. No. 3879.

• Decision Date: 02 March 1956
• Docket Number: Civ. No. 3879.
• Parties: Laura URBAN, Plaintiff, v. FRONTIER AIR LINES, a corporation, Defendant.
• Court: U.S. District Court — District of Wyoming

139 F. Supp. 288

Laura URBAN, Plaintiff, v. FRONTIER AIR LINES, a corporation, Defendant.

Civ. No. 3879.

United States District Court D. Wyoming.

March 2, 1956.

Ellery, Gray & Hickey, Cheyenne, Wyo., for plaintiff.

Clarence A. Swainson, Cheyenne, Wyo., for defendant.

KERR, District Judge.

Plaintiff, Laura Urban, a fare-paying passenger on Frontier Airlines, brings this action for recovery of damages which she alleges she sustained through the negligence of defendant's employee.

The undisputed facts may be related, as follows: On the morning of December 31, 1954, plaintiff and her mother-in-law boarded flight No. 2 at Denver, Colorado, with destination Rawlins, Wyoming; prior to the arrival in Cheyenne the weather became rough and turbulent; the plane stopped in Cheyenne for seven or eight minutes and departed for Laramie, a distance of approximately 50 miles; upon leaving Cheyenne the weather continued to be turbulent — using the testimony of the stewardess "It was the roughest trip I have been on since I have been flying"; a short distance out of Cheyenne plaintiff requested permission to go to the plane's lavatory and was advised by the stewardess it was too rough and to "wait a little while"; plaintiff complied with this instruction and a few minutes later, according to plaintiff's testimony, the stewardess nodded her head and advised plaintiff that "I think you can go now"; the plaintiff unfastened her seat belt and went to the lavatory; while in the lavatory the plane hit a down draft, throwing plaintiff to the floor, from which fall she sustained a broken ankle. The testimony respecting permission to go to the lavatory is in striking conflict and constitutes the crux of this controversy.

Defendant in its third defense has interposed the defense of "assumption of risk" and alleges that plaintiff had knowledge that the plane was passing through rough and turbulent weather and that the plaintiff well knew the risk from unfastening her seat belt and leaving her seat. In the early and formidable stages of air travel this defense would be valid.

With each city in the United States linked by air line passenger service to every center of the world it can no longer be said that a passenger entering upon the modern commercial plane voluntarily assumes a risk with respect to the plane itself or its operation. Its pioneering and experimental days with the dangers incidental to trial and error have passed and like the steamships, railroads and automobiles this form of transportation is here to stay. Advertising by airlines of safe and fast travel can be found in most any periodical and newspaper.

The rules applicable to common carriers of passengers apply with equal force to aircraft. It should exercise the highest degree of care consistent with the practical operation of the plane and protection of its passengers from injury. 6 Am.Jur. Sec. 51. It follows that the defense of assumption of risk is without merit.

Upon arrival in Laramie a few minutes following the accident the stewardess made out the following report, in part as follows: "6. Did you witness accident? Yes. If so, describe what you saw, heard, or know about the accident: Extreme turbulent weather. Patient attempted to get out of seat. 7. Was injured person (or property owner) a passenger, employee or guest? Passenger. 8. Cause of accident (Explain in detail): Pressure on foot due to turbulent weather & out of seat. 9. Quote any statement by injured person (or property owner) as to cause: Pressure on foot due to turbulent weather."

At Riverton, Wyoming, on the same date of the accident, the stewardess made a second report, the material portions being as follows: "Mrs. Laura Urban, 1060 Pennsylvania, Denver, Colo. Psgr. attempted to walk to blue room during turbulent weather. Seat belt sign was on & I was fastened in. Before I could get to psgr. we hit extreme turbulence & she was thrown up & then landed on her left foot very hard. I treated her for shock & could tell immediately it was broken. I elevated foot on blankets & pillows & notified Capt. I could not locate anything to use as splint however I did tie foot & ankle in triangular...