Bruce v. O'Neal Flying Service

• Decision Date: 17 July 1951
• Docket Number: No. 450,450
• Court: North Carolina Supreme Court
• Parties: BRUCE, v. O'NEAL FLYING SERVICE, Inc.

Page 312

66 S.E.2d 312

234 N.C. 79

BRUCE, v. O'NEAL FLYING SERVICE, Inc.

No. 450.

Supreme Court of North Carolina.

July 17, 1951.

Simms & Simms and Douglass & McMillan, Raleigh, for plaintiff, appellee.

Murray Allen, Raleigh, for defendant, appellant.

JOHNSON, Justice.

The defendant's exceptive assignments of error relate to: (1) the refusal to nonsuit; (2) the admission of evidence; and (3) the charge of the court.

1. The refusal to nonsuit.--This case was here at the Fall Term, 1949, on appeal by the plaintiff from judgment of nonsuit at the close of the evidence. The decision, reversing the lower court for failure to submit the case to the jury, is reported in 231 N.C. 181, 56 S.E.2d 560, where the background facts are stated in pertinent detail.

'It is settled law that a decision of this Court on a former appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal.' Maddox v. Brown, 233 N.C. 519, top p. 521, 64 S.E.2d 864, 865. Where the question of nonsuit has been decided in favor of the plaintiff on a prior appeal, as in the instant case, it suffices for the plaintiff on retrial to offer substantially the same evidence, and a motion to nonsuit may not be resolved against the plaintiff unless the evidence on retrial varies in a material aspect from that offered on the first trial. Maddox v. Brown, supra.

An examination of the record on each appeal discloses that the defendant offered no evidence at either trial. The same witnesses testified at both hearings. Some variations are disclosed in the details of the testimony, but not in matters of substance. The evidence on the retrial was substantially the same as at the first hearing. This made it a case for the jury. Maddox v. Brown, supra.

2. The admission of evidence.--The gravamen of plaintiff's cause of action as alleged in the complaint and developed by the evidence is: that the defendant Flying Service was giving a 'demonstration of safe flying'; that as part of the demonstration three airplanes were to go up in formation to an altitude of about 2,000 feet. Then each airplane was to descend, one after another, in an oscillating, spiral movement, make three turns or 'spins', and then pull out into normal flight at a height of about 500 feet above the ground; that the airplane in which the intestate was riding as a guest passenger, piloted by H. L. Bobbitt, was the lead airplane in the formation; that the pilot ascended to an altitude of about 1,800 feet and then nosed into the spin; that instead of pulling out into normal flight after completing three spins, allegedly he negligently attempted to make five or more spins and in doing so crashed on the ground.

Plaintiff's cause of action is grounded upon the theory that the spin-maneuver in which the parties were engaged is an ordinarily 'safe maneuver for an airplane when properly done,' but that the pilot Bobbitt failed to exercise due care in controlling the airplane, in that he failed to pull out of the spin at a safe height.

Against the foregoing background we come to consider the defendant's exceptions to certain portions of the testimony of R. H. Edwards, Jr. and W. S. O'Neal, who saw the fatal maneuver and crash and, as qualified experts, described the movements of the airplane and gave opinions as to the cause of the crash. Here follows the pertinent parts of the testimony (admitted over objections and exceptions duly made and preserved),--first the testimony of the witness R. H. Edwards, Jr.:

'Q. What is your opinion, Mr. Edwards, as to the safety of that maneuver known as a spin? A. My opinion is that in a proper aircraft with a properly trained pilot at a proper altitude it is a safe maneuver because I have done it hundreds of times.

'Q. Do you have an opinion satisfactory to yourself as to the number of turns that could be made in a spin with safety from an altitude of 1800 feet? A. Yes, sir, I have an opinion.

'Q. How many turns could be made with the Aeronca 'plane, a 'plane of this type that is in question?

'The Court: You mean in a spin?

'Mr. Douglass: Yes, sir.

'Q. From 1800 feet in a spin? A. Three turns would be the limit, sir, with safety,--and that would be the absolute limit.

'Q. I wish you would state whether or not there was anything in the appearance of the maneuver that was then being made with the spin that indicated to you that there was anything mechanically wrong with the 'plane. A I do not think there was anything mechanically wrong.

'Q. State whether or not the turns that were made in this spin were normal turns.

'The Court: I think he can express his opinion as an expert.

'A. Yes, sir, they were normal turns.

'Q. Based upon your knowledge and experience with 'planes of this type and with that particular 'plane and your observation at the time this spin was being made, state whether or not you have an opinion satisfactory to yourself as to what caused this 'plane to strike the ground? A. Yes, sir, I have an opinion.

'Q. What is your opinion? A. My opinion is that Mr. Bobbitt attempted to do too many turns before he recovered.'

The challenged testimony of the witness W. S. O'Neal:

'Q. Mr. O'Neal, do you have an opinion satisfactory to yourself as to how many turns in the spin could have been safely made by Mr. Bobbitt from the altitude from which he started, 1800 feet? A. Yes, I do.

'Q. What is your opinion? A. In my opinion, from the altitude that the maneuver was started, I would say that three turns were all that should have--that three turns would have been safe enough.

'Q. From your observation of this airplane crash and from your knowledge and experience have you an opinion satisfactory to yourself as to the cause of this crash? A. I have an opinion, yes, sir.

'Q. What is that opinion? A. My opinion is that the pilot of the airplane, Mr. Bobbitt, just tried to overdo it.

'Q. What do you mean by overdoing it? A. Well, he was trying to give the public a thrill or what you might say he was trying to give them their money's worth, as you might say.'

The defendant insists that the foregoing testimony, embodying opinions as to the cause of the crash, should have been excluded as being expressive of opinions as to the very issue of fact before the jury, i. e., the cause of the crash. The defendant cites and relies upon Patrick v. Treadwell, 222 N.C. 1, 21 S.E.2d 818. However, the basic facts in that case are different and the decision is distinguishable from the instant case. Indeed, the law as laid down in the Patrick case supports the challenged rulings of the court below in the case at bar. We quote from the Patrick case:

'It has been frequently stated by the courts that the testimony of an expert witness should be excluded when it invades the province of the jury, or when it expresses an opinion on the very issue before the jury. * * *' 222 N.C. mid. p. 4, 21 S.E.2d at page 821.

'But this rule is not inflexible, is subject to many exceptions, and is open to criticism.' 222 N.C. mid. p. 4, 21 S.E.2d at page 821.

'* * * and it is frequently relaxed in the admission of evidence as to ultimate facts in regard to matters of science, art, or skill, as may be seen by reference to Holder v. [Giant] Lumber Co., 161 N.C. 177, 76 S.E. 485; Ferebee v. Norfolk Southern R. [Co.], 167 N.C. 290, 83 S.E. 360; Barrow v. [Philadelphia Life] Ins. Co., 169 NC. 572, 86 S.E. 497; Moore v. [General Accident, Fire & Life Assur.] Corp., 173 N.C. 532, 92 S.E 362, and to many other cases.' 222 N.C. top p. 5, 21 S.E.2d at page 821.

Also, in Patrick v. Treadwell, supra, the Court recognizes the propriety of permitting experts, in the light of their professional skill, to draw inferences from facts personally observed by them, and cites in support thereof George v. Winston-Salem Southbound R. Co., 215 N.C. 773, 3 S.E.2d 286, 288, and McManus v. Seaboard Air Line R. Co., 174 N.C. 735, 94 S.E. 455. In the George case it is stated: 'It will be noted that this witness, admitted to be an expert, spoke from a professional and personal examination of the intestate, and the answer, to our minds, was clearly within the domain of expert opinion.'

In the instant case, the witnesses were duly qualified experts, testifying from actual observation of an airplane with which they were personally familiar. They testified to composite facts based upon their knowledge, skill, and experience as experts from observation of the movements and actions of the airplane itself at the very time of the occurrence. The challenged testimony may not be held for error. It has the sanction of well considered authorities on the subject. Wigmore on Evidence, Third Edition, Vol. VII, Sections 1919 through 1923, p. 14 et seq. See also: Watson v. City of Durham, 207 N.C. 624, 178 S.E. 218; Pyatt v. Southern R. Co., 199 N.C. 397, 154 S.E. 847; Barnes v. Seaboard Air Line R. Co., 178 N.C. 264, 100 S.E. 519; and Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358.

The last answer of the witness O'Neal in which he expressed the opinion that the pilot 'was trying to give the public a thrill or what you might say he was trying to give them their money's worth, as you might say,' may exceed the permissive bounds of expert testimony, but upon this record it is deemed insufficient to upset the result reached below. In re Will of Efird, 195 N.C. 76, 141 S.E. 460.

3. The Charge of the court.--The defendant's principal exceptions to the charge relate to the...