FEDERAL INSURANCE COMPANY, Defendant, Appellant, v. Ada Ligia BONILLA COLON, etc., et al., Plaintiffs, Appellees. PAN AMERICAN WORLD AIRWAYS, INC., Defendant, Appellant, v. Ada Ligia BONILLA COLON, etc., et al., Plaintiffs, Appellees.
Nos. 6867, 6868
United States Court of Appeals First Circuit.
Decided April 2, 1968.
Rehearing Denied May 14, 1968 in No. 6868.
392 F.2d 662
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
Heard Feb. 5, 1968.
The appeal challenges findings of the District Court following bench trial to the effect that appellant was guilty of negli-gence which was the proximate cause of the accident and that appellee was not guilty of contributory negligence.
We conclude, first, that neither issue, under the facts, was susceptible of deter-mination as matter of law, but that deter-mination was for the court as finder of the facts; second that in no respect can its findings be said to be clearly errone-ous.
Affirmed.
Francisco Ponsa Feliu, San Juan, P. R., for appellant, Federal Ins. Co.
A. Santiago Villalonga, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for appellant, Pan American World Air-ways, Inc.
Harvey B. Nachman, San Juan, P. R., with whom Gustavo A. Gelpi, Santurce, P. R., and Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., were on brief, for appellees.
These are diversity suits for wrong-ful death resulting from a fall on a stairway at the International Airport in Puerto Rico on July 11, 1963. Plain-tiffs, the children and grandchildren of the decedent, obtained substantial jury verdicts against Federal Insurance Com-pany, the insurer of the Puerto Rico Port Authority, and also against Pan American Airways. Both defendants appealed. The deceased, Nicolasa Colon Vda de Bonilla, was a woman seventy-eight years of age but apparently active and vigorous considering her age.
After showing her ticket and going through the entrance gate, decedent was handed a shoe box by her granddaughter who, with other relatives, had accompa-nied her to the airport. Shortly there-after, she descended the stairway to board the plane, keeping to the far left of the stairway to avail herself of the railing. As she descended she had the shoe box in her right hand and was carrying a handbag in her left hand. It is not clear whether the fact that both hands were otherwise occupied pre-vented the decedent from grasping the rail firmly but at any rate she held on to it to some extent. A few steps from the bottom Mrs. Bonilla fell to the pavement thereby incurring injuries which caused her death.
Distinct theories of liability are urged against the defendants. Against Federal Insurance Company it is alleged that its insured constructed the stairway in vio-lation of the building code of Puerto Rico. In support of this there was tes-timony that some of the risers on the stairway differed in height by an eighth of an inch. Against Pan American it is alleged that it breached its duty of care as a public carrier by failing to assist decedent with her packages, there-by in effect denying her the use of the railing and also by failing to warn the decedent of the dangers to be encounter-ed in using this stairway.
Section 43-3 of the regulations pro-vides that whereas new buildings con-structed after the effective date must conform to its provisions, existing build-ings need not unless they are enlarged, altered, or reconstructed after the ef-fective date. Furthermore, section 43-21 defines an existing building as “a build-ing erected prior to the effective date of this subchapter, or one for which a building permit has been issued by the Permit Official prior to the effective date of this subchapter, which permit has not yet expired.”
Despite the fact that these regu-lations did not become effective until Sep-tember 12, 1954, the district court re-fused to admit into evidence two docu-ments, one dated March 18, 1953, show-ing the approval for construction of the passenger terminal building of the In-ternational Airport, and the other a per-mit for construction dated March 25, 1953. We think that this ruling of the district court was also erroneous and resulted in substantial prejudice to de-fendant, Federal Insurance Company, because the verdict against it was based largely on the assumption that violation of the regulations would be negligence per se.
The district court appears to have reasoned that the structure in this case was not an existing building within sec-tion 43-21 because this definition must be read in light of section 43-3(c) which contemplates a structure to be enlarged, altered or reconstructed. This interpre-tation seems strained even within section 43-3, since it leads to the paradoxical re-sult that a building is not really “exist-ing” unless it is about to be torn down. Moreover it becomes entirely untenable when analyzed in light of section 43-31, which reads in part as follows:
“(e) No changes will be required in the plans, construction, or designated use of buildings or structures for which a lawful permit has been issued and is valid at the effective date of this subchapter, provided that such construction is completed within one year after the effective date of this subchapter.”
See Torres v. Metropolitan School of Commerce, Supreme Court of Puerto Rico, October 6, 1964, where it is sug-gested that it is up to the plaintiff to introduce evidence that the building was constructed after the effective date of the regulations.
The question remains whether we should order judgment for the defend-ants on their motions for directed ver-dicts, or simply order a new trial. Even though the plaintiffs put their case to the jury on the wrong theory, we should not now order judgment if on the record plaintiffs would have been entitled to submission on some other theory. We are satisfied that they would not.
The plaintiffs not only based their case upon violation of the nonap-plicable regulations, but, although on this appeal they enlarged their ground and argued otherwise, at the trial they suc-cessfully limited the evidence to that theory. When defendants offered to show that apart from the regulations the small variations in the heights of the steps of 1/8th to 1/4 of an inch did not present any deviation from the standards in the community, the plaintiffs stated they “object to any standard which is in violation of the statute or regulation.” The court sustained the objection. In this posture the argument in plaintiffs’ brief that the steps were deficient in de-sign quite apart from the regulations is entirely out of place. Plaintiffs may not insist that defendants cannot offer evi-dence on a particular theory, and then say afterwards that the evidence they
Nor need we stop there. Care-ful scrutiny of the record fails to offer support for the contention that the stairs were defective or dangerous on ordinary negligence principles. The evidence that comes closest is the testimony of plain-tiffs’ pathologist that variations in the heights of steps as slight as this could cause loss of balance. Study of this tes-timony reveals, however, that all the wit-ness was saying was that this could hap-pen from the standpoint of causation, not that these variations were sufficient so that such consequences were reasonably foreseeable. Pressed on cross-examina-tion on the reason why great numbers of persons had gone over these same steps for years without injury, he concluded that “the reaction of every person con-fronted by an obstacle is completely dif-ferent from all other persons.” On the assumption that the stairs violated some regulation, this testimony may well have established sufficient causation for de-cedent‘s fall. It did not, however, rise to the stature of indicating negligence. A defendant is not bound at its peril to anticipate every conceivable idiosyncrasy of human behavior merely because a doc-tor testifies after the event that some result was medically possible.
The separate claims asserting that even if the stairs were not defective the defendant, Pan American, should have seen that after the decedent passed through the gate she received a small package from her granddaughter; that this made it difficult for her to hold onto the handrail, and that “courtesy” dictated that an elderly lady, though in apparent good health, be helped down the stairs are without merit. Apparently the plaintiffs, members of her family who themselves accompanied the decedent to the gate and knew about the package, expect the defendant to realize better than they did the extent of personal at-tention she needed.
Moreover, this is based in part on plaintiffs’ assertion that a public carrier owes its patrons the highest duty of care, citing Charbonier v. Metropolitan Bus Authority, Supreme Court of Puerto Rico, December 31, 1963; Morales Mejias v. Metropolitan Packing and Warehous-ing, 86 P.R.R. 3 (1962). But this applies only to passengers who are in the actual course of travel or who are boarding or alighting. The overwhelming majority rule is that it does not apply to the car-rier‘s premises generally, Polara v. Trans World Airlines, Inc., 284 F.2d 34 (2d Cir. 1960), (applying New York law); Neer-ing v. Illinois Cent. R. R. Co., 383 Ill. 366, 50 N.E.2d 497 (1943); contra, Ortiz v. Greyhound Corp., 275 F.2d 770 (4th Cir. 1960), (applying Maryland law). Nor is it significant that Pan American did not actually own the premises here. Horelick v. Pennsylvania R. Co., 13 N.J. 349, 99 A.2d 652, 41 A.L.R.2d 1278 (1953).
Judgment will be entered vacating the judgment of the district court and re-manding the cases with direction for entry of judgment for the defendants.
ON PETITION for REHEARING
PER CURIAM.
Plaintiffs have petitioned for rehear-ing, alleging, inter alia, that our deci-sion is contrary to an assumption made by the court in Rodriguez v. American R.R. Co. of Puerto Rico, 1932, 43 P.R.R. 472. In that case the court held that a railroad that owned a station and main-tained an approach thereto for the use of the public in which it had erected iron posts, and had failed to provide illumina-tion, owed a duty of care to a pedestrian. The assumption the court made, in find-ing the question of liability to be close, was that plaintiff‘s case would have been stronger had the injured party been a passenger. In the case at bar we have held that the approach, viz., the steps, was not shown to be defective. In con-sidering the other claims made against Pan American we stated that they fell outside the scope of the “highest duty of care” owed by a carrier to its patrons.
The petition for rehearing is denied.