Cape Chas. Flying Ser. v. Nottingham
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3317. |
| Citation | 187 Va. 444 |
| Parties | CAPE CHARLES FLYING SERVICE, INC., ET AL. v. KATHERINE LEE NOTTINGHAM, ETC. |
| Court | Virginia Supreme Court |
1. AVIATION — Liability of Flying Service Corporation for Damages — Injury to Invitee Leaving Defendants' Plane — Case at Bar. — In the instant case, an action for personal injuries against defendant flying service corporation, plaintiff was a school girl invitee who was taken for an airplane ride by an employee of defendant who had not received a Virginia license to operate a plane at the time of the flight. On the trip the pilot engaged in stunt flying and as a result plaintiff became dizzy, excited and upset. When the plane landed plaintiff without aid, warning or direction from defendant took two or three steps and was struck in the face by the revolving propellor. Defendant assigned as error 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.
Held: No error.
2. AVIATION — Liability of Flying Service Corporation for Damages — Injury to Invitee Leaving Defendants' Plane — Contributory Negligence of Plaintiff — Case at Bar. — In the instant case, an action for personal injuries against defendant flying service corporation, plaintiff was a school girl invitee who was taken for an airplane ride by an employee of defendant who had not received a Virginia license to operate a plane at the time of the flight. On the trip the pilot engaged in stunt flying and as a result plaintiff became dizzy, excited and upset. When the plane landed plaintiff without aid, warning or direction from defendant took two or three steps and was struck in the face by the revolving propeller. While the noise from the revolving propellor could be heard from a distance of several hundred feet it could not be seen as plaintiff was approaching it at an angle at the rear. Defendants contended that even if they were negligent the evidence convicted plaintiff of contributory negligence as a matter of law.
Held: That there was no merit in the contention.
3. NEGLIGENCE — Proximate Cause — Injury Resulting from One of Two Causes — Instructions. — 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.
4. INSTRUCTIONS — Abstract Principles — Pertiment Facts Covered by Other Instructions — Case at Bar. — In the instant case, an action for damages arising from negligence of a flying service corporation, defendants assigned as error the refusal of the trial court to give certain instructions which, although they contained correct principles of law contained statements of abstract principles not founded on any evidence in the record. Every pertinent principle of law stated in the refused instructions was covered in other instructions given.
Held: No error, since to give the instructions refused would have tended to confuse the jury and would have served no useful purpose.
5. VERDICT — Return of Illegal Verdict — Jury Not to Be Discharged. — It is the duty of trial courts to see that the jury is not discharged upon the return of an illegal verdict. In such event they should be properly instructed, and not discharged (except for some good reason) until they have found and returned a legal verdict upon which the appropriate judgment can be based.
6. VERDICT — Appeal and Error — Determination of Real Finding of Jury. — The Supreme Court of Appeals will go far in the disregard of defects in verdicts which have been accepted by the trial courts, but from which notwithstanding such defects, the real finding of the jury may be determined, though it may not be accurately couched in the technical language of the law. It is always necessary, however, before a judgment can be entered upon a verdict, that it appear just what the jury found or intended to find.
7. VERDICT — Form — Use of Word "Defendant" in Place of "Defendants". — When from the whole record it appears that the reasonable intendment of the jury is that "defendant" as used in the verdict was unintentionally used for "defendants", then the verdict must be accepted as decisive as to both defendants.
8. VERDICT — Construction — Favorably Construed. — Verdicts are to be favorably construed, and, if the point in issue is substantially decided by the verdict, it is good, and when the meaning of the jury can be satisfactorily collected from the verdict, upon the matters involved in the issue, it ought not to be set aside for irregularity or want of form in its wording.
9. VERDICT — Form — Use of Word "Defendant" in Place of "Defendants" — Case at Bar. — The instant case was an action for damages against defendant flying service corporation and a pilot employed by it. The verdict was in favor of the plaintiff and directed that the defendant pay a certain amount in damages. Neither plaintiff nor defendants made any attempt to distinguish between the negligence of the corporation and the negligence of the pilot. Defendants contended that the verdict of the jury was vague because of the use of the word "defendant" in the singular.
Held: That the only reasonable inference that could be drawn from the language used in the verdict was that the singular "defendant" was unintentionally used for the plural "defendants".
10. ARGUMENTS AND CONDUCT OF COUNSEL — New Trial — Discretion of Trial Court. — The decision of the trial court on the question of improper argument is within its sound judicial discretion and its ruling will not be disturbed unless the record discloses an abuse of that discretion.
11. ARGUMENTS AND CONDUCT OF COUNSEL — New Trial — Discretion of Trial Court — Case at Bar. — In the instant case, an action for damages arising from negligence of a flying service corporation, defendants based an assignment of error on the refusal of the trial court to sustain their motion for a mistrial because of the following remark of counsel. "Gentlemen of the jury, it could have been your child; it could have been the child of any of your friends or acquaintances just as well as the child" who was injured. The court told the jury to disregard what counsel had said on the subject.
Held: That there was no abuse of discretion by the trial court.
Error to a judgment of the Circuit Court of Northampton county. Hon. Jeff F. Walter, judge presiding.
The opinion states the case.
Tazewell Taylor, Tazewell Taylor, Jr., William F. Ayres and I. W. Jacobs, for the plaintiffs in error.
Benjamin W. Mears, L. H. Mears and Charles M. Lankford, Jr., for the defendant in error.
This writ of error brings under review the record of a trial which culminated in a judgment on a verdict of $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 such negligence 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,...
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