Bruce v. O'Neal Flying Service
| Decision Date | 30 November 1949 |
| Docket Number | 454. |
| Parties | BRUCE v. O'NEAL FLYING SERVICE, Inc. |
| Court | North Carolina Supreme Court |
Action for wrongful injury and death of plaintiff's intestate. Nonsuit on demurrer to the evidence.
Pertinent evidence of the plaintiff may be summarized as follows:
W. S O'Neal, at that time president of the defendant corporation and manager of its local airport where the alleged injury was inflicted and death occurred, staged in behalf of the defendant an air show to dedicate its new airport and demonstrate airplane maneuvers, to which the public was invited, and around 8,000 persons attended.
O'Neal was president of the defendant corporation and manager of its airport and in charge of the show, himself participating in the maneuvers. The flying staff consisted of O'Neal, H L. Bobbitt and Mack Bass.
The operation being conducted was the demonstration of 'precision spins' which O'Neal testified was a normal movement performed in an airplane and, when properly done, was safe and not dangerous. It is described as a controlled movement in which the pilot causes the plane to descend in an oscillating, spiral movement from which the pilot, never losing control, may 'level off' or recover when he desired.
Before the flight began it was planned and agreed that the pilots above mentioned were to ascend to 2,000 feet and upon reaching that height to drop into the spiral movement, making from three to five turns, as appeared to the individual pilot to be safe, and as necessity required.
Just before the ascent plaintiff's intestate, who had sometimes given instruction in flying at the airport, but who was not then in the defendant's employment, approached the pilot Bobbitt, saying, 'Bobbitt, how would you like to have a passenger?' And Bobbitt invited him to 'come on.' This was in the presence of Manager O'Neal (who so testified). He further testified that it was a matter 'up to the pilot.' Bruce entered the plane, taking the rear seat, and the planes took off as planned in a V formation, Bobbitt leading in the front plane at the apex of the V. When Bobbitt's plane reached an altitude of 1,800 feet, instead of the 2,000 feet as planned he started in his spin, or spiral movement, made five and one-half turns, apparently made no effort to recover and the plane struck the ground. Both Bruce and Bobbitt were instantly killed.
Witness O'Neal, qualifying as an expert, testified that Bobbitt should have completely recovered to normal straight flight at least 500 feet from the ground and that it was unsafe to continue the spiral movement any closer. O'Neal, on seeing the airplane strike, throttled his engine hard and grading his turns, went down and landed. O'Neal gave his expert opinion that the crash was due to the fact that the pilot Bobbitt, in demonstrating the spin, 'overdid it--tried to make it too good' and went too low; that if he had finished in three spins he would still have been 1,000 or 1,200 feet above ground; starting to spin at 1,800 feet he could not make more than three turns safely. The pilot Bobbitt could tell by his altimeter the height of the plane. Bobbitt was 50 or 100 feet from the ground when he went into the fourth or fifth spin. Witness further stated that he was flying for the O'Neal Flying Service.
On the cross-examination this witness stated that he did not know what went on in the cockpit of the plane, could not see and could only assume. He described the plane as an Aeronca Tandem Model, 7AC, demonstrating with a model the maneuver of spinning and declaring it to be a safe maneuver when properly executed. He stated that Mr. Bobbitt was in the instructor's seat, the front seat, and Mr. Bruce was a passenger sitting in the rear seat. The plane had dual controls--two pairs of controls--so that either person had a means of controlling its flight. The controls, however were coupled together so that a movement of one device caused a corresponding simultaneous movement in the similar member of the other--the control sticks and pedals executing exactly the same movement.
On re-direct examination the witness stated Mr. Bobbitt was in the front seat and doing the piloting.
R. H. Edwards, who qualified as an expert, stated that he was chief pilot of Serv-Air, Inc., which operates an airport near Raleigh and was present and witnessed the fatal flight. He testified that the spiral maneuver referred to was safe when properly performed and that an Aeronca plane was suitable to use in that maneuver; that if the movement was executed from an altitude of 1,800 feet the observed number of turns could not be made with safety. From that altitude, he testified, only two or three turns could have been made with safety. He testified on cross-examination that either of the persons in the plane could have controlled its movements--but if the pilot in front had set his stick and was pushing on the pedals controlling the spin, the man in the rear seat would have to overcome his force.
B. W. Stevens, a news photographer, also a pilot, testified that he saw the three planes reach their altitude and start spinning in successive order. The lead plane was practically on the ground when the third plane began spinning. It had made five and one-half turns when it hit the ground. Photographs taken by this witness were used in illustration. The witness described the motion of the plane in making the spiral as a leaf falling of its own weight.
Other evidence was introduced on the issue of damages and matters not concerned with the subject of this decision.
At the conclusion of plaintiff's evidence, the defendant, offering none, demurred and moved for judgment of nonsuit. The motion was allowed, and plaintiff excepted and appealed.
Simms & Simms, Douglass & McMillan, Raleigh, for plaintiff, appellant.
Murray Allen, Raleigh, for defendant, appellee.
In this action for negligent injury resulting in death of plaintiff's intestate, nonsuit was allowed on demurrer to the plaintiff's evidence, and the defendant was, therefore, not under the necessity of offering any. Decision requires consideration only of the nonsuit, which gave plaintiff's case the coup de grace. The trial judge gave no intimation as to the basis of his ruling, and it is, therefore, referable to any reason which may justify it. The defendant-appellee suggests several, any one of which, it is contended, will support the judgment: That the evidence contains no inference of negligence on the part of the pilot in charge; that the pilot, Bobbitt, was not at the time, and for the purpose undertaken, an employee or agent of the defendant, so as to make the latter liable on the principle respondeat superior; that the plaintiff is barred from recovery by his assumption of the risk in participating in an obviously dangerous maneuver; that he was contributorily negligent; and that he invited or willingly suffered the injury resulting in death ('volenti non fit injuria').
We consider these questions, perhaps not in order, but as they are touched by the evidence.
The evidence tends to show that Bobbitt was an employee of the defendant and as such was given complete charge of the plane which operated in the airshow, or demonstration. O'Neal, the president of the defendant company and the manager of this enterprise, testified that Bobbitt was selected by the defendant for this purpose. This is sufficient to raise an inference of agency. Mechem on Agency, (2d Ed.), sec. 1859; Irwin v. Judge, 81 Conn. 492, 71 A. 572; Hill v. Morey, 26 Vt. 178; 57 C.J.S., Master & Servant, § 563.
The circumstances under which Bruce entered the plane also raise the inference that the pilot was authorized to take him up and owed to him the duty, imputed to the defendant, to refrain from negligent injury. The invitation was extended to Bruce by Bobbitt within the hearing of O'Neal and its significance was at once apparent. It did not require the spoken word, merely his silent acquiescence to give authority. Wright v. Wright, 229 N.C. 503, 506, 50 S.E.2d 540; Russell v. Cutshall, 223 N.C. 353, 26 S.E.2d 866; Hayes v. Pine State Creamery, 195 N.C. 113, 141 S.E. 340; Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; Schwartz, Trial of Automobile Cases, sec. 373.
The measure of defendant's duty is that of ordinary care. Wright v. Wright, supra. The above citations are concerned with automobile law but Agency, the measure of negligence, and other principles discussed are equally applicable to the law of aviation. Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 425, 180 N.E. 212, 23 N.C.C.A., N.S., 384; Bird v. Louer, 272 Ill.App. 522; Rogina v. Midwest Flying Service, 325 Ill.App. 588, 60 N.E.2d 633; Interstate Airlines v. Arnold, 127 Neb. 665, 256 N.W. 513; Spartan Aircraft Co. v. Jamison, 181 Okl. 645, 75 P.2d 1096; 2 C.J.S., Aerial Navigation, § 19, p. 907.
The legal sufficiency of the evidence to go to the jury is more strongly challenged in two respects: It is contended that the testimony of expert witnesses concerning the crash of the plane and its cause is merely guesswork, without probative force, and does not rise to the dignity of evidence; and that, at any rate, there is no evidence to determine which of the occupants of the plane--whether the pilot put in official charge, or Bruce, who entered as a passenger--had control at the time of the spinning maneuver which resulted in the crash and death of Bruce.
While the cross-examination elicited answers from the witnesses giving expert opinions as to the operational failure led to answers which appellee construes as withdrawing their statements, it may be conceded there were some assumptions, that part of this evidence was directed to the circumstance that they...
To continue reading
Request your trial