Cape Charles Flying Serv. Inc v. Nottingham

• Decision Date: 26 April 1948
• Parties: CAPE CHARLES FLYING SERVICE, Inc., et al. v. NOTTINGHAM.
• Court: Virginia Supreme Court

47 S.E.2d 540

187 Va. 444

CAPE CHARLES FLYING SERVICE, Inc., et al.

v.NOTTINGHAM.

Supreme Court of Appeals of Virginia.

April 26, 1948.

Error to Circuit Court, Northampton County; Jeff F. Walter, Judge.

Action by Katherine Lee Nottingham, etc, against Cape Charles Flying Service, Inc., and Richard Thomas Cavedo, for injuries when plaintiff was struck by the propeller of an airplane operated by defendants. To review an adverse judgment, defendants bring error.

Reversed as to Richard T. Cavedo and affirmed as to defendant corporation.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Tazewell Taylor and Tazewell Taylor, Jr., both of Norfolk, William F. Ayres, of Cape Charles, and I. W. Jacobs, of Norfolk, for plaintiffs in error.

Benjamin W. Mears and L. H. Mears, both of Eastville, and Charles M. Lank-ford, Jr., of Exmore, for defendant in error.

HUDGINS, Chief Justice.

This writ of error brings under review the record of a trial which culminated in a judgment on a verdict for $20,000, compensation for personal injuries sustained by plaintiff when struck by the propeller of an airplane operated by defendants.

The Cape Charles Flying Service, Inc., hereinafter referred to as defendant corporation, owns a landing field just east of the town of Cape Charles, Virginia, and is engaged in the business of hiring planes, training pilots, etc. Richard Thomas Cavedo was an eighteen-year-old Richmond high school student. He had only fifty hours flying credit, and since December, 1945, has held a pilot's license issued to him by the Civil Aeronautics Administration. At the time of the accident he had not received a license to operate planes in Virginia. He was not a regular employee of defendant corporation, but on the day of the accident he had flown a plane from Richmond to Cape Charles, and was employed by defendant corporation as a pilot for that afternoon.

On February 22, 1946, the president and the general manager of defendant corporation, in order to advertise the business of the corporation and create a greater interest in pilot training, invited the members of the junior and senior classes of Cape Charles High School to visit the landing field and ride in the planes.

Plaintiff, Katherine Lee Nottingham, sixteen years of age, and Betty Ames Ewell were among the many students who accepted the invitation. The students were compelled to take turns in getting seats on the three planes which defendants were operating. Finally Kitty and Betty were directed to get in a "cub" plane which had only two seats. The front seat was occupied by the pilot, Cavedo, and the two girls were crowded together in the rear seat. There were two braces called "struts" on each side, fastened to the body of the plane just behind the pilot's seat and extending to within a few feet of the tip of the wings.

When the plane landed, Kitty got out first and after she left the plane, the revolving propeller struck her inflicting the injuries for which she claims damage in this action. She did not recall anything that occurred from the time the plane taxied to a stop until she was en route to the hospital.

Defendants' first assignment of error is based on the refusal of the trial court to strike the evidence and later to set aside the verdict, on the ground that the evidence was not sufficient to convict defendants of negligence; and, even if suchnegligence was proved, plaintiff was guilty of contributory negligence as a matter of law.

The rule, that a litigant who has obtained a verdict approved by the trial court is entitled to have the evidence and all fair inferences therefrom considered in the light most favorable to him, will be observed, in the following discussion.

The evidence for plaintiff shows that she was only sixteen years of age, that this was her first ride in an airplane, and that during the ten minutes that she was in the air the pilot engaged in "stunt flying" and attempted the "barrel roll." The pilot stated to Kitty and Betty that he could not complete a barrel roll because there was an extra passenger aboard, but the plane was permitted to dip or drop at frequent intervals which created the sensation of riding in a fast moving elevator. As a result of this operation of the plane the two girls became more or less dizzy, excited and upset. Plaintiff thought she might not be able to walk when she alighted. When the plane stopped, it was facing N.N.E. with its tail toward the parked cars of the guests of defendant corporation, one of which cars plaintiff had driven to the field. The propeller was permitted to idle and was revolving at five hundred revolutions per minute. Plaintiff, without aid, warning, or direction, from defendants crawled out of the plane on its right side behind the pilot, stepped on the ground under the wing four or five feet behind the idling propeller, and left the plane at an acute angle toward the front. After she had taken two or three steps she turned her head over her left shoulder to speak to the pilot or Betty and was struck in the face by the revolving propeller. She fell at the feet of Betty who was getting out of the plane behind her.

We find no error in the refusal of the trial court to strike the evidence, or to set aside the verdict, as evidence for plaintiff tends to prove that defendants were negligent in failing to exercise ordinary care in operation of the plane to prevent or minimize the known tendency of some persons inexperienced in flying to become nauseated, dizzy, or mentally or physically upset in the course of the flight; and that defendants failed to exercise ordinary care to warn plaintiff on alighting of the danger of the revolving propeller, or to direct her to a place of safety. Curtiss-Wright Flying Service v. Williamson, Tex.Civ. App., 51 S.W.2d 1047, Annotations, 99 A. L.R. 191; 83 A.L.R. 365; 6 Am.Jur. 37.

Defendants contend that even if they were negligent the evidence convicts plaintiff of contributory negligence as a matter of law.

The evidence for defendants tends to support this contention. C. P. King, president of defendant corporation, and Richard T. Cavedo, the pilot, testified that when plaintiff alighted from the plane on its right side, she walked in an apparently normal manner to the rear and around the tail of the plane, turned, and came up on the left side to a point approximately ten feet in front of the plane, where she paused, deliberately turned around, and walked back into the revolving propeller. When she was six feet from it, the pilot yelled, "Look out for the propeller, " and cut the switch, but not in time to stop the propeller before it struck plaintiff.

The evidence for plaintiff presents quite another picture. It tends to prove that when the plane stopped plaintiff was somewhat excited or slightly dizzy. In this abnormal condition she crawled out of the plane on the right side in front of the "struts, " leaving the body of the plane at an acute angle and walking in a stooped position under the wing four or five feet. She turned her head to the left and was struck by the propeller. While the noise from the revolving propeller could be heard for a distance of several hundred feet, it could not be seen, and plaintiff was approaching it at an angle from the rear. Under these circumstances the jury had a right to find or to believe that the plaintiff was not in a normal condition and hence was unconscious of the danger, did not hear the noise, or, if she did, was not in a mental condition to properly evaluate the situation.

This conflict on the question of plaintiffs contributory negligence raised an is-sue which was properly submitted to the jury.

Defendants' second assignment of error is based on the action of the trial court in giving the following instructions for plaintiff:

"The Court instructs the jury that it was the duty of the pilot, Richard Cavedo, to keep a proper look-out for the plaintiff, Kitty Lee Nottingham, and if you believe from the evidence that he either saw, or by the exercise of ordinary care, should have seen her peril in time to have avoided the injury, then you must find a verdict for the plaintiff."

Defendants state their objection to this instruction as follows:

"The vice of this instruction lies in the fact that the uncontradicted evidence is that Cavedo, the pilot, as soon as he saw the plaintiff's peril took every means with in his power to avert the injury. He both shouted a warning and at once made an effort to stop the propeller. The whole incident occurred in less time than it takes to narrate it."

This argument is based on the evidence for defendants and entirely ignores the evidence for plaintiff. The testimony for plaintiff is that she alighted from the plane a few inches back of the pilot, crawled over the landing gear, and walked slightly to the right and in plain view of the pilot who, in the exercise of ordinary care, could or should have seen her in time to warn her of the danger or to have stopped the propeller.

Defendants' third assignment of error is based on the refusal of the trial court to give, at their request, instructions 6d, 7d, 8d, and l0d.¹

The instructions while containingcorrect principles of law, contain statements of abstract principles not founded upon any evidence in the record. When there is substantial evidence introduced which tends to prove that plaintiff's injuries may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which he is not responsible, such defendant is entitled to have the jury told that the plaintiff must fail if his evidence does not prove that his damages were produced by the negligence of defendant; and he must also fail if it appears from the evidence just as probable that damages were caused by the one as by the other because the plaintiff must make out his case by a preponderance of the evidence. See Honaker, v. Whitley, 124 Va. 194, 97 S.E. 808; Chesapeake & O. Railroad...