Aircraft Sales & Service v. Gantt, 6 Div. 942

• Court: Supreme Court of Alabama
• Writing for the Court: LIVINGSTON
• Citation: 255 Ala. 508,52 So.2d 388
• Parties: AIRCRAFT SALES & SERVICE, Inc., v. GANTT.
• Docket Number: 6 Div. 942
• Decision Date: 10 May 1951

Page 388

52 So.2d 388 255 Ala. 508 AIRCRAFT SALES & SERVICE, Inc.,
v.
GANTT. 6 Div. 942. Supreme Court of Alabama. May 10, 1951.

[255 Ala. 509]

Page 390

London & Yancey, Geo. W. Yancey and Frank E. Lankford, all of Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.

[255 Ala. 510] LIVINGSTON, Chief Justice.

Charles F. Gantt recovered judgment in the Circuit Court of Jefferson County, Alabama, against Aircraft Sales & Service, Inc., for personal injuries received in the fall or crash of an airplane operated or piloted by Gantt, and owned by Aircraft Sales & Service, Inc.

The cause was submitted to the jury in the court below on counts 'B' and 'D'. The legal sufficiency of neither count is questioned on this appeal.

In substance, count 'B' claimed damages for that, defendant negligently furnished to plaintiff an aircraft with which to make a practice flight which was defective in that the controls would not and could not be operated so as to control the aircraft in flight and that as a result the aircraft crashed or fell. Count 'D' is in similar language but specifically alleges that the aircraft was defective in that it had a screwdriver beneath the floor board of the aircraft, which screwdriver was not a part of the aircraft, in a place where it was likely to and did catch or wedge in the controls of the aircraft while in flight and that as a proximate result the aircraft was caused to fall or crash.

Defendant interposed a plea of the general issue in short by consent with leave, etc.

Assignments of error 1, 2 and 3 are predicated upon the refusal of the affirmative charge, with hypothesis, requested in writing by defendant as to each count in the complaint.

Where the affirmative charge is refused the rule is axiomatic that the entire evidence must be viewed in its most favorable aspect for the adverse party and where, from it, a reasonable inference may be drawn adverse to the party requesting it, the charge is properly refused. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224.

It is not denied that prior to, and at the time appellee was injured appellant was conducting a flight school in which students were trained as airplane pilots. Appellee was enrolled as a student in this school under the so called 'G. I. Bill,' the essential features of which provided that the United States Government, through the Veterans Administration, paid appellant for the instruction and airplanes furnished to appellee. Prior to being injured appellee had received about 12 or 13 hours of instruction with an instructor in the airplane with him. In addition, he had about 15 hours solo time. His instructors had taught him how to make, and handle the airplane in, 'S' turns, stalls, spins, landings and take offs and patterns. Prior to his being allowed to fly solo, appellee's instructors taught him how to pull out of spins and stalls, and his ability in these respects had been checked by his instructors before he was allowed to fly an airplane by himself and he had been found competent in that regard. On the afternoon the appellee was injured he was furnished with a Aeronica airplane, powered by a 65-horsepower motor, by appellant for the purpose of a practice flight.

Further, the evidence tended to show that on the afternoon he was injured appellee, after giving the airplane the customary ground check as to condition of wings, gas

Page 391

and oil, oil pressure, revolutions per minute of the motor, controls on the plane, etc., he 'took off' from the airport and maneuvered the plane to get out of the pattern, climbed [255 Ala. 511] to about 1500 feet and then flew the plane to a training area, with which appellee was familiar, some 15 or 18 miles from the airport: that he did some 'S' turns over a road he knew, and in making these turns, lost some 800 feet in altitude: that he then climbed to an altitude of about 3000 feet, put the plane into a spin, and after three revolutions or turns pulled the plane out of the spin at about 1500 to 1700 feet: that when he started to pull out of the spin the stick 'was kind of gritty; a little grab in there,' but it came back all right: that he then flew on and lost more altitude: that when he was flying at about 900 feet he went into a...