Capital Airlines, Inc. v. Barger

• Citation: 341 S.W.2d 579,47 Tenn.App. 636
• Parties: CAPITAL AIRLINES, INC. v. Frances S. BARGER, Admx.
• Decision Date: 01 August 1960
• Court: Tennessee Court of Appeals

Page 579

341 S.W.2d 579

47 Tenn.App. 636

CAPITAL AIRLINES, INC. v. Frances S. BARGER, Admx.

Court of Appeals of Tennessee, Eastern Section.

Aug. 1, 1960.

Rehearing Denied Sept. 8, 1960.

Certiorari Denied by Supreme Court Dec. 9, 1960.

Folts, Bishop & Thomas, Chattanooga, for plaintiff in error.

Harry Berke and A. A. Wassick, Chattanooga, for defendant in error.

HOWARD, Judge.

Referring to the parties as they appeared below, this tort action grew out of an airplane accident which occurred when a four-motor Viscount passenger plane, owned and operated by the defendant, Capital Airlines, Inc., crashed in a field approximately 2,200 feet short of the south end of runway No. 5, at the Tri-City Airport near Saginaw, Michigan. The accident occurred on the night of April 6, 1958, at 11:19 P.M. under circumstances hereinafter appearing. At the time the plane was approaching said runway to make a routine landing at the Airport. Plaintiff's husband, Dan M. Barger, age 28, was a passenger on the ill-fated plane, and he and 43 other passengers and the crew of 3 will perished in the crash.

Plaintiff, who qualified as Administratrix of her husband's estate in Hamilton County, Tennessee, sued the defendant for damages for the death of her husband, as provided by the wrongful death statute of the State of Michigan, her declaration alleging that the plane crashed short of the runway because of the negligence of the defendant in the following respects: 'Failing to land the plane in a careful manner; failing to have the plane under proper control; failing to keep a proper lookout ahead for the runway; failing to provide or use proper instruments to guide the plane to a landing; and in failing to exercise a high degree of care to transport plaintiff's husband to his destination.'

By general plea the defendant denied liability, and being ordered to plead specially, the defendant averred: 'That the plane was properly equipped, had recently undergone inspection and had been found in good mechanical condition; that the defendant complied with all the rules and regulations of the Civil Aeronautics Board with regard to all phases of operation, maintenance, repair and use of the aircraft and the competency, skill and physical condition of the pilots; that the pilot for this flight was well qualified and thoroughly experienced; that the plane was making a routine approach to landing and had straightened out on its final approach when the nose of the plane dropped abruptly and the plane dove into the ground; that the accident was the result of an act of God and occurred because of an unusual, unforeseeable meteorological phenomenon which caused the plane to become uncontrollable, humanly, mechanically, or otherwise.'

By replication the plaintiff joined issue upon the special pleas, and, thereupon, the case proceeded to trial before a jury.

There were two trials in which the defendant made motions for peremptory instructions at the conclusion of all the evidence introduced upon each trial. These motions were overruled. The first trial resulted in a mistrial, because the jury was unable to agree, and by reason of the trial judge's refusal to sustain defendant's motion for peremptory instructions, the defendant preserved and has filed a Wayside Bill of Exceptions. The second trial resulted in a jury verdict for the plaintiff for $110,000 which the trial judge approved, and judgment was entered. Defendant filed motion for a new trial and for a directed verdict, which motion was overruled, and this appeal in error was prayed, granted and perfected.

The defendant concedes that the evidence introduced on both trials was substantially the same. This concession, therefore, obviates the procedural requirement of our reviewing here the record of the first trial, although we have carefully and painstakingly read the records of both trials, in order to get a more complete understanding of the case.

Defendant's assignments of error are directed to (1) the sufficiency of the evidence; (2) alleged errors in the charge; (3) the denying of certain requests; (4) the exclusion of certain evidence, and (5) the amount of the verdict.

The rule is well settled that where there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from all the evidence, a motion for a directed verdict must be overruled. Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 206 S.W.2d 806; East Tenn. Natural Gas Co. v. Peltz, 38 Tenn.App. 100, 270 S.W.2d 591.

We shall now review briefly the evidence as reflected by the record:

On the might of the ill-fated crash, the proof showed that the weather was disagreeable, but not unusually hazardous for flying. There was a mixture of slight rain, sleet and snow, with gusts of wind ranging from 18 to 27 knots per hour. At 11 P.M., only a few minutes before the crash, the weather observer in the tower at the airport recorded a 900 foot ceiling overcast, with visibility of 3 miles. None of these conditions was described as dangerous for the safe landing of planes. In fact only a few minutes before the crash two other planes had landed safely on runway 5, and these pilots testified that they experienced no trouble, and had found the weather much better than reported to them by the weather observer.

As the ill-fated plane approached the airport for a landing, it appears that it made a wide swing and missed the runway; that after circling the airport in a slight bank, the plane returned and approached the runway much 'slower and lower' than had planes previously at this point. On descending to a point about 2,200 feet short of the runway, the plane, traveling at an estimated height of from 250 to 500 feet, suddenly nosed down at an angle of from 45 to 60 degrees and crashed to the ground. By the force of the impact the motors were buried in the dirt about 3 feet, and the forward momentum of the plane caused it to flip over on its back. After coming to rest the tail of the plane was pointing toward the runway on which it had expected to land. On striking the ground the plane burst into flames, making it impossible for any of the passengers or crew to escape.

It further appears that the plane was fully loaded with passengers, and that at a stop only 20 minutes previously had been refueled; that the plane was bound to accumulate some ice under prevailing weather conditions, necessitating the use of the de-icer, and that as ice accumulated it was necessary to increase the power. There were admissions by defendant's witnesses that the Dowmic switch, a pre-stall warning device, was found to be in a malfunctioning condition after the crash, but that defendant's pilots did not rely upon this device. Also that the pilot of the ill-fated plane had made 'below average grade' on some of the phases of his pre-flight tests.

An investigation following the accident by the Civil Aeronautics Board disclosed that the crash did not result from the failure of any structural parts of the plane, nor was there any proof whatsoever by pilots or weather observers of any unusual weather phenomenon in the area that caused or remotely contributed to the cause of the crash.

It was conceded that the defendant's pilot had the exclusive control and management of the plane; that defendant was a public carrier for hire; that plaintiff's intestate was a paying passenger, and that defendant owed him the highest degree of care.

On behalf of the defendant it is insisted here, as it was below, that the proof showed that it was impossible for a plane flying at the altitude of 250 to 500 feet to crash as did the plane in question; that under the prevailing conditions had there been a failure of motors, or had the pilot turned loose of the controls, or flown too low, the plane would not have nosed down abruptly, but would have mushed into a pancake landing and spread wreckage over a great area.

Were the above facts sufficient to warrant the jury in finding an inference or presumption of negligence under the doctrine of res ipsa loquitur? We think that they were, as it devolved upon the defendant to rebut the inference or presumption by showing that the crash was unavoidable, and could not have been prevented by the exercise of the highest degree of care.

Regarding the application of the doctrine of res ipsa loquitur, the Middle Section of this Court, speaking through Felts, Judge, in Sullivan et ux. v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782, 783, said:

'The classic statement of the doctrine of res ipsa loquitur is this: '(W)here the thing (causing the harm) is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' Erle, C. J., Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 Eng. Reprint 665, 667.

'This statement has been accepted in our cases. John Bouchard & Sons Co. v. Keaton, 9 Tenn.App. 467, 479; North Memphis Savings Bank v. Union Bridge & Const. Co., 138 Tenn. 161, 177, 196 S.W. 492; Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808, 60 A.L.R. 254; Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 230 S.W.2d 659.

'The maxim res ipsa loquitur means that the facts of the occurrence evidence negligence; the circumstances unexplained justify an inference of negligence. In the principle of proof employed, a case of res ipsa loquitur does not differ from an ordinary case of circumstantial evidence. Res ipsa loquitur is not an arbitrary rule but rather 'a common sense appraisal of the probative value of circumstantial evidence.' Boykin v. Chase Bottling Works, 32 Tenn.App. 508, 520-523, 222 S.W.2d 889, 896.

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"A res ipsa loquitur case is a circumstantial evidence case which permits a jury to infer negligence...