Ahmann v. United Air Lines, Inc.

• Decision Date: 06 February 1963
• Docket Number: 17066.,No. 17065,17065
• Parties: Elmer W. AHMANN, Jr., Administrator of the Estate of James H. Ritner, Deceased, Appellant, v. UNITED AIR LINES, INC., a Corporation, Appellee. Jane F. GANDY, Executrix of the Estate of Jack S. Gandy, Deceased, Appellant, v. UNITED AIR LINES, INC., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

313 F.2d 274 (1963)

Elmer W. AHMANN, Jr., Administrator of the Estate of James H. Ritner, Deceased, Appellant, v. UNITED AIR LINES, INC., a Corporation, Appellee.

Jane F. GANDY, Executrix of the Estate of Jack S. Gandy, Deceased, Appellant, v. UNITED AIR LINES, INC., a Corporation, Appellee.

Nos. 17065, 17066.

United States Court of Appeals Eighth Circuit.

February 6, 1963.

J. D. James, Kansas City, Mo., Alvin C. Randall, of Hogsett, Houts, James, Randall & Hogsett, Kansas City, Mo., and Gibson Langsdale and Clif Langsdale and S. L. Trusty, Kansas City, Mo., on the brief, for appellants.

Morris H. Kross, Kansas City, Mo., Clay C. Rogers, of Rogers, Field & Gentry, Kansas City, Mo., on the brief, for appellee.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

VOGEL, Circuit Judge.

On June 30, 1956, two passenger airplanes carrying a total of 128 persons left Los Angeles airport, one being a Trans World Airlines Constellation bound non-stop for Kansas City, Missouri, and the other a United Air Lines DC-7 bound non-stop for Chicago, Illinois. Approximately an hour and a half later the two planes collided in mid-air and crashed into the bottom of the Grand Canyon, killing all occupants. There were no witnesses to describe the tragedy. These lawsuits are concerned with liability for the collision.

The plaintiffs-appellants are the personal representatives respectively of the co-pilot and pilot of the TWA Constellation. They brought these actions against United Air Lines, Inc., defendant-appellee, for damages for the wrongful deaths of their decedents based upon the Wrongful Death Act of the State of Arizona and the negligence law of that state.

Plaintiffs' complaints charge that the defendant-appellee, United Air Lines, Inc., negligently failed to keep a proper lookout, negligently failed to give way when overtaking the rear of the TWA Constellation occupied by plaintiffs' decedents, and negligently collided with the rear of the TWA plane when the defendant saw or should have seen said plane in time to avoid striking it. Upon joinder of issue, the cases were consolidated and tried. The jury returned two verdicts, one in favor of the plaintiff Ahmann in the amount of $45,000 and the other in favor of the plaintiff Gandy in the amount of $64,000. Defendant made motions for judgments notwithstanding the verdicts. The District Court granted defendant's motions, decreeing that the plaintiffs take nothing and that their complaints be dismissed with prejudice and costs. Appeals from the final judgments were made to this court.

The principal, if not the only, issue on appeal is whether the trial court erred in granting the motions for judgments notwithstanding the verdicts. In other words, this court is required to determine whether the evidence was sufficient to permit the jury to resolve the issue of negligence. In making that determination, we, of course, must take that view of the evidence most favorable to the plaintiffs and must accept as established all inferences that reasonably can be drawn therefrom and which support the jury's verdicts.

An examination of the evidence so viewed indicates the following:

At 9:01 a. m. on June 30, 1956, TWA Flight No. 2, a Constellation 1049, took off from Los Angeles on its non-stop flight to Kansas City, Missouri. The flight plan filed by the TWA pilots with Air Route Traffic Control at Los Angeles called for a flight from Los Angeles via established airways to Daggett, California, thence direct to Trinidad, Colorado, and on via direct flight to Kansas City. Reporting points for the flight were to be at Daggett, California, Lake Mojave, Nevada, the 321° Radial of Winslow, Arizona, Farmington, New Mexico, Trinidad, Colorado, and other points further east. Their flight plan also called for and was cleared by ARTC at an altitude of 19,000 feet.

At 9:05 a. m. United Air Lines Flight No. 718, a DC-7, took off from Los Angeles bound on its non-stop flight for Chicago, Illinois. The flight plan of United Air Lines called for flight from Los Angeles via Green Airway 5 to Palm Springs Intersection, direct to Needles, California, direct to PDQ, direct to Durango, Colorado, and on to points further east to Chicago. The flight plan called for and was cleared by ARTC for flight at an altitude of 21,000 feet.

At 9:30 a. m. the TWA flight was approaching Daggett, California. Through its radio station at Los Angeles it contacted ARTC, requesting clearance for an amendment to its flight plan from an altitude of 19,000 feet to 21,000 feet. Permission was refused because of United Air Lines Flight 718 having been given an altitude of 21,000 feet. Permission was granted, however, for TWA Flight 2 to "maintain at least 1,000 feet on top". This meant that if Visual Flight Rules conditions (VFR) existed and could be maintained, the TWA Constellation was free to occupy any odd-numbered altitude while traveling in a generally easterly direction. Had TWA been granted the requested 21,000 feet altitude, that would have allowed it to travel through clouds at that altitude and it would not have been necessary to maintain VFR conditions.

The collision of the two planes, however, occurred in what is known as uncontrolled air space; that is, an area outside of any controlled zone or controlled airway. In such uncontrolled air space, the only means of avoiding collision is to maintain Visual Flight Rules conditions; that is, the "see and be seen principle". Section 60.30(b) (1), Civil Air Regulations, provided that planes outside of control zones "shall not be flown less than 500 feet vertically under, 1,000 feet vertically over, and 2,000 feet horizontally from any cloud formation"; and Section 60.31(d) thereof provided that, "When outside of control zones and control areas, no person shall operate an aircraft in flight when the flight visibility is less than one mile." Flying in "VFR" conditions means flying in air space where the foregoing minimums can be maintained. Being in uncontrolled air space, both planes were required to stay where they could fly VFR.

At approximately 10:31 a. m. a message was received on United Air Lines radio at Salt Lake City understood to be as follows: "Salt Lake, United 718 — (pause) we're going in." No other report was received from either plane indicating difficulty.

The facts known about the two flights indicate that the defendant's DC-7 was making faster time than the TWA plane by some 30 to 35 miles per hour. The flight plan of the United DC-7 called for a speed that was over 20 miles per hour faster than that proposed by the TWA pilots. In their last report over Lake Mojave at 9:55 a. m., the TWA pilots estimated crossing the Painted Desert line of position at 10:31 a. m. (The Painted Desert line of position is not a definite fixed point but is a line about 175 to 200 miles long stretching from Bryce Canyon, Utah, to Winslow, Arizona.) Such an arrival time would call for an average speed of 326 miles per hour. At 9:58 a. m. the United pilots reported over Needles and also estimated crossing the Painted Desert line of position at 10:31 a. m. This would require an average speed of 358 miles per hour, or a difference in estimated speeds of 32 miles per hour. The actual average speed to the point of collision was 296 miles per hour for the TWA and 330 miles per hour for United, or a difference of 34 miles per hour. Finally, the United plane took off later and had a greater distance to fly to reach the point of impact, which was approximately one mile from the confluence of the Colorado and Little Colorado Rivers but short of the Painted Desert line of position. Concededly, both planes were off course at the time of collision. Had each plane maintained its course, their flights would not have crossed until some distance beyond the Painted Desert line of position.

The foregoing determinations were made through an investigation conducted by experts from the Civil Aeronautics Board. In addition, they formed a Structures Committee to study the debris from the two planes as it was found in the canyon. Parts of the wreckage were removed and taken to Washington, D. C., where they were tested by the Bureau of Standards, photographed and studied further by members of the Structures Committee. It was established without substantial dispute which portions of the planes came together in the initial impact and the attitudes of the two planes in relation to each other but not with relation to the ground. There was no way of ascertaining the altitude at the time of collision.

The largely uncontroverted physical facts were these: The fuselage of the TWA wreckage was found mostly in the same general area. With the wreckage of the TWA fuselage was found about 20 feet of the left wing of the United DC-7. This partial wing was not found intact but, rather, in several parts. The pieces were severely damaged and showed evidence of having been in contact with some other object. The leading edge of the wing was bashed in from front to back. Pieces of skin from the underside of the wing were scratched in an inward and aft direction and at an angle of 20° to 25°. The scratches came from the rivets in the rear fuselage of the TWA Constellation. The left wing tip was bent and wrinkled in an inward and upward direction. There were black rubber smudges and smudges of red paint on that deformity. It was established that the smudges came from the TWA silver surface stripping, the leading edge of the left fin of the Constellation and the de-icer boot of that left fin. Embedded in the lower wing skin of the United was a piece of headliner from the TWA Constellation. Headliner is a fabric material found in the interior upholstery of the latter plane. Also this piece had brown smudges on it which were identified as sealant from the TWA rear pressure bulkhead.

The parts of the left wing of the United plane found with the TWA main wreckage were approximately a...