Cohn v. United Air Lines Transport Corporation

• Decision Date: 08 February 1937
• Docket Number: No. 2529.,2529.
• Citation: 17 F. Supp. 865
• Parties: COHN v. UNITED AIR LINES TRANSPORT CORPORATION.
• Court: U.S. District Court — District of Wyoming

17 F. Supp. 865

COHN v. UNITED AIR LINES TRANSPORT CORPORATION.

No. 2529.

District Court, D. Wyoming.

February 8, 1937.

E. C. Raymond, of Newcastle, Wyo., and Edward T. Lazear, of Cheyenne, Wyo., for plaintiff.

Wilfred O'Leary, of Cheyenne, Wyo., and Smith, Brock, Akolt & Campbell and J. H. Shepherd, all of Denver, Colo., for defendant.

KENNEDY, District Judge.

In the above-entitled cause the plaintiff, as administratrix, seeks to recover damages on account of the death of the intestate Hanley G. Cohn, growing out of the alleged negligence of the defendant in connection with an airplane accident on October 30, 1935, near Cheyenne, Wyo. Omitting reference to the formal allegations of the petition, that portion pertinent to the present inquiry is contained in paragraph 4, reading as follows:

"That on or about the 30th day of October, 1935, at Cheyenne, Wyoming, the Plaintiff's intestate, Hanley G. Cohn, at the request of the Defendant, United Air Lines, boarded a Boeing plane belonging to the said United Air Lines; that one Marion T. Arnold, now deceased, and an employee of the said United Air Lines was the pilot on said plane, and E. E. Yantis and H. R. Kauffman, both now deceased, and employees of the United Air Lines were in the said plane, said Yantis and Kauffman being instrument mechanics in the employ of the said United Air Lines; that at about the hour of 7:00 o'clock P. M. on said day, the Boeing plane before mentioned took off from the ground for a test flight, with the said Arnold, Yantis, Kauffman and with the Plaintiff's intestate, Hanley G. Cohn, aboard; that during said test flight the said plane was under the sole control and management of the Defendant's employees; that at about the hour of 7:40 o'clock P. M. on said date, and at a point about five miles south of the City of Cheyenne, and during said test flight, said plane crashed, causing the death of the said Hanley G. Cohn and the other three men heretofore mentioned; that said crash was due to the negligence of the Defendant, United Air Lines; that the death of the said Hanley G. Cohn was the direct result of the negligence of the Defendant, United Air Lines; and that his death occurred at a time when said plane was under the sole control and management of the Defendant, United Air Lines, and without fault or negligence on the part of the said Hanley G. Cohn."

In addition, the petition discloses that plaintiff's intestate was himself an air pilot employed by a different air transportation company.

The defendant first interposed a motion to make more definite and certain, in response to which upon the argument it was stated by counsel in plaintiff's behalf that no further or better statement of the cause of accident could be made and that reliance was made wholly upon the application of the doctrine of "res ipsa loquitur," to sustain the cause of action. Under these circumstances the court deemed it to be a useless and futile matter to grant the motion, but suggested that the point might be adequately tested by a demurrer to the petition. Such demurrer was accordingly filed, and the cause is now before the court for consideration upon trial briefs submitted. It seems to be obvious that the foregoing procedure involved the only practical method available. Inasmuch as the petition alleged no specific acts of negligence, which plaintiff admitted could not be supplied, it became a case to be decided by a consideration of the allegations of the petition as to whether or not in the light of those allegations the doctrine of res ipsa loquitur should be applied. If it should be so applied, it would mean that a cause of action had been stated, or if not, that the demurrer should be sustained and the cause dismissed.

From the early English cases down to the present time, this doctrine has been given much consideration, as revealed by the energy of counsel in their briefs submitted for the enlightment of the court. It would require a treatise upon the subject out of harmony with a trial court memorandum to attempt to review, discuss, or cite even a small number of the decisions and text discussions upon the subject. A few authorities announcing the general principle underlying the doctrine may be helpful in applying it to the facts set forth in the petition.

In 45 C.J. p. 1193, it is said: "Where the thing which caused the injury complained of 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 its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions so that the occurrence of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence."

Again at p. 1196: "The phrase `res ipsa loquitur,' which literally means `the thing speaks for itself,' is a term used in a limited class of negligence cases referring to the method of proof of general negligence as distinct from proof of specific negligence. This doctrine, which is considered in various connections at other places in this work, is a rule of evidence peculiar to the law of negligence and is an exception, or perhaps more accurately a qualification of the general rule that negligence is not to be presumed but must be affirmatively proved. Thus, while negligence of defendant, as previously stated, cannot be inferred or presumed from the mere happening of an accident, the law by virtue of the doctrine recognizes that an injury may occur under such circumstances that it may be sufficient to establish prima facie the fact of negligence without further or direct proof thereof. This rule, however, when applicable to the facts and circumstances of a particular case is not intended to and does not dispense with proof of culpable negligence on the part of the party charged, but on the contrary, being a substitute for specific proof of acts of omissions constituting negligence, it merely prescribes one method by which plaintiff may prove the negligence charged against defendant and determines or regulates what shall be prima facie evidence thereof."

The following statement is made upon the subject in San Juan Light & Transit Co. v. Requena, 224 U.S. 89, at page 98, 32 S.Ct. 399, 401, 56 L.Ed. 680, by Mr. Justice Van Devanter in speaking for the Court: "When so read it rightly declared and applied the doctrine of res ipsa loquitur, which is, when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care. Inland & Sea-Board Coasting Co. v. Tolson, 139 U.S. 551, 554, 11 S.Ct. 653, 35 L.Ed. 270, 271; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 A. 707; Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 A. 1068, 67 L.R.A. 475; Trenton Passenger Railway Co. v. Cooper, 60 N.J.Law, 219, 37 A. 730, 38 L.R.A. 637, 64 Am.St.Rep. 592; Newark Electric Light & Power Co. v. Ruddy, 62 N.J.Law, 505, 41 A. 712, 57 L.R.A. 624; 2 Cooley, Torts (3d Ed.) 1424; 4 Wigmore, Ev. § 2509."

A limitation upon the rule of application is found in Patton v. Texas & Pacific Railway Co., 179 U.S. 658, at page 663, 21 S.Ct. 275, 277, 45 L.Ed. 361, as indicated: "And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion."

It is likewise narrowed by the language of Judge John F. Phillips of the Circuit Court of Appeals Eighth Circuit in Minneapolis General Electric Co. v. Cronon, 166 F. 651, at page 659, 20 L.R.A.(N.S.) 816, in which he says: "The doctrine of res ipsa loquitur, invoked in argument, has no place under the facts of this case. At best it is uncertain, if not dangerous, in practice, and should not be applied, `except when it not only supports the conclusion contended for, but also reasonably excludes all others.' Peirce v. Kile, 80 F. 865, 26 C.C.A. 201; Chicago & N. W. Ry. Co. v. O'Brien, 132 F. 593, 67 C.C.A. 421; Northern Pacific Ry. Co. v. Dixon, 139 F. 737, 71 C.C. A. 555."

Justice Riner, in speaking for the Wyoming Supreme Court in Stanolind Oil & Gas Co. v. Bunce, 62 P.(2d) 1297, at pages 1307, 1308, adopts the language of another court in...