Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges.
This is an appeal involving a personal injury negligence action in which jurisdiction was based on diversity of citizenship. Since the accident occurred in New Jersey, the law of that state is applicable.
Michael Saporito, the plaintiff-appellant, was employed by the International Terminal Operating Company about June 1951 to perform maintenance work on its battery operated flat trucks. These trucks were used in stevedoring work for which Holland-America Lines, defendant-appellee, had engaged Saporito's employer. Saporito worked in a room known as the "electrical shop" on the Fifth Street Pier in Hoboken, New Jersey, which had been leased by Holland-America from the Fifth Street Pier Corporation.
This "electrical shop", about 30 feet by 50 feet in size, was entered by means of two overhead garage type doors. It was alleged that one door was not usable because it was obstructed by ships stores and other materials. It was through the unobstructed overhead door that the electric trucks entered and left the "electrical shop".
Saporito testified that late in the afternoon of December 18, 1957, a chauffeur of Holland-America, finding his entrance into its garage blocked by some of the electric trucks, proceeded to remove them and in doing so crashed one or more into the unobstructed overhead door of the "electrical shop". As a result the wooden plate, which supported the track on which the door traveled by means of small rollers, was pulled away from the wall to which previously it had been secured. The vertical track guide and rollers were bent. He also testified that he reported the damage to a Mr. Volz, allegedly the engineer of Holland-America and that Mr. Volz and his assistants viewed the damage the day after.
Saporito himself made some repairs to the door immediately and assisted two carpenters in making further repairs on the following day.*fn1 Despite these repairs the door did not function properly. In Saporito's words:
"It raised with some difficulty and also closed with some difficulty in the sense that you had to tug on it in order to close and push on it in order to get it raised."
Hence, as a precautionary measure, Saporito thought it wise to prop it up when it was open. For this purpose he used a 2 X 4 or 3 X 3 piece of dunnage. He continued this procedure for about three weeks prior to the accident which occurred on January 9, 1958.
On that date Saporito opened the door in the morning to permit the longshoremen to remove the electric trucks. As usual he propped it up with a piece of dunnage until the longshoremen left when he removed it and put it aside. As he was about to pull the door down a longshoreman called to him requesting that a piece of equipment be moved. As Saporito was about to answer, the door crashed down on him causing the injuries for which he brought this suit.
The door did not come down vertically in its track. The plate and track broke away from the door and the rollers that followed the track were broken. The door was completely off its suspension and laying in a heap on the ground connected only to its spring by two pieces of cable.
After Saporito presented his case Holland-America moved for an involuntary dismissal on the ground that no negligence had been shown and that Saporito was contributorily negligent, or had assumed the risk, as a matter of law. The trial court found that the testimony presented a jury question as to whether or not Holland-America was negligent and denied its motion in so far as that ground was concerned. The court reviewed the evidence adduced by Saporito and concluded:
"Now, on cross-examination this plaintiff was asked repeatedly regarding the reason for his use of the prop for the door. He said he used that prop ever since the occurrence of the damage to the door two or three weeks before the occurrence of which he complains here. He said he took the precaution of putting the prop in because he thought there was some danger. He put the prop in under the door to keep the door from coming down. He propped it up because he didn't want to take a chance on its coming down. He said it was dangerous and known to him to be dangerous and that he was the only person who raised or lowered that door.
"Now, it seems to me that the old Latin phrase volenti non fit injuria is peculiarly applicable to this case. Whether we interpret the situation confronting us on the plaintiff's own testimony as indicating an assumption of risk, or as indicating contributory negligence, it is perfectly obvious that the plaintiff knew that the condition of the door was dangerous. He knew that the only way to prevent that danger was to prop the door. He had continuously used that means to prevent its fall, and then on the day of the accident here moved the prop and the door fell apparently right after the removal ...