Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
These are appeals by all four parties to an action by plaintiff Kozman for damages for personal injuries resulting from his fall from a ladder while engaged in cleaning the windows of a door of a TWA hangar located at LaGuardia Airport in New York City. Originally Kozman, a window cleaner employed by Allied Cleaning Contractors, Inc., commenced an action in the Supreme Court of New York against TWA, which maintained, managed, operated, and controlled the hangar in question pursuant to a lease, originally from the owner of the airport, the City of New York, later assigned to the Port of New York Authority. Kozman alleged that TWA negligently, suddenly, and without warning revved up all four engines of one of its airplanes with such force as to cause the air current and sound blast engendered by this action "suddenly and violently [to] blow, push and propel the plaintiff and the top of the ladder on which plaintiff was standing to one side and thereafter [to] cause the top of the ladder to slip away from the point at which it rested against the said door and thereafter to dislodge the plaintiff and cause him to be hurled suddenly and violently to the ground below."
After removal of the action to the United States District Court because of the diverse citizenship of the parties, TWA moved to implead Allied Maintenance Corporation, its window cleaning contractor, as a third-party defendant on the basis of the indemnity provisions of the contract between these two parties.*fn1 TWA alleged that Allied Maintenance had violated N.Y. Labor Law, McK.Consol.Laws, c. 31, § 202 by allowing Kozman to use an ordinary window cleaner's ladder to do his work, instead of making him use a telescoping scaffold which TWA had supplied and provided in accordance with the contract.
Thereafter Kozman served an amended complaint in which he repeated the allegations of his original complaint for common law negligence and added a second "cause of action" wherein he repeated his first "cause of action" and further alleged that TWA had violated §§ 28, 29, 30, 202, and 240 of the N.Y. Labor Law, and the Rules of the Board of Standards and Appeals promulgated pursuant to those sections, by failing to provide him with any safety device of any kind or nature within the purview of those sections. TWA denied the material allegations of Kozman's complaint and served an amended third-party complaint which was identical with its original third-party complaint. Allied Maintenance, in addition to denying the material allegations of both Kozman's and TWA's amended complaints, served a fourth-party complaint upon Allied Cleaning seeking indemnity and alleging that Allied Maintenance sublet the window cleaning contract to Allied Cleaning, for which plaintiff was working.
After trial before Judge Noonan and a jury both "causes of action" were submitted for consideration of the jury, which returned a verdict for TWA on the first "cause of action," and for Kozman on the second. In turn the jury granted recovery over by TWA against Allied Maintenance, and by Allied Maintenance against Allied Cleaning - all in the amount of $17,000 and costs. This appeal from the resulting judgment followed.
At 10:30-11:00 a.m. on December 15, 1950, Kozman, an experienced professional window cleaner, was cleaning the lower window panes of TWA's hangar door. He was standing about 10 feet up on an ordinary three-section window cleaner's ladder having an over-all extended length of about 18 feet. The ladder was not equipped with rubber "boots" or "shoes" on its lower extremities. Nor were the windows equipped with anchors to which might be attached safety belts for the cleaners, though the use of such safety devices appears not to have been practicable here.
Adjacent to the hangar doors and running the entire length of the hangar was a strip of level concrete or hard surfacing 4 to 5 feet wide, beyond which the surface began to slant downward to some extent. Prior to mounting the ladder Kozman had placed its feet on the concrete strip about 3 to 3 1/2 feet away from the hangar doors. No one was holding the ladder on the day of the accident, although Kozman testified that it was customary to have a co-worker hold the bottom of the ladder if conditions were such that it might slip. The day before, when he was working on an extension ladder 40 to 44 feet in length, he had had another worker holding the bottom of the ladder.
A Weather Bureau Report introduced into evidence showed that some snow had been falling during the 2 1/2 hours preceding the accident. At 10:40 a.m. occasional snowflakes were falling, possibly accompanied by light rain.
The day before the accident there was testimony that TWA employees had moved aircraft in and out of its hangars by jeep and had warmed up engines near the hangars, but had no created too much "power to the wind." Kozman could observe and feel the extent and strength of the draft thus created by the manner in which it blew against the hangar doors and by the "shaking and rattling" of the doors. There was some evidence that on the preceding day and on other occasions TWA employees warned the window cleaners when aircraft were to be warmed up in the vicinity, but most of this proffered evidence of a prior custom of warning was excluded by the trial judge.
The accident occurred while Kozman was cleaning a window with his right hand and was holding the side of the ladder with his left. His pail of water was suspended from a rung of the ladder. He testified that suddenly and without warning to him "* * * a big noise came out from the four motors of the TWA airplane, and all of a sudden a great wind like a hurricane hit me, and the doors was shaking and rattling. The top of the ladder blew off on the right side glass and kept on bouncing down. I grabbed my hands around the ladder and down I went." And a TWA maintenance foreman testified that at about the time of the fall all four engines of a TWA aircraft were being warmed up near the hangars prior to its departure for the marine terminal.
The evidence is clear that the top of the ladder slipped. Whether the bottom also slipped is not at all clear, although at one point Kozman testified categorically that the bottom did not slip. Still the sequence of questions and answers in which this denial appears, read as a whole, seems to leave the issue still in doubt; and at any rate Kozman, ...