Corning v. Dec Aviation Corp., 94
| Decision Date | 05 March 1971 |
| Docket Number | No. 94,94 |
| Citation | 184 N.W.2d 152,50 Wis.2d 441 |
| Parties | George W. CORNING et al., co-partners d/b/a Lonroc Flying Club, et al., Appellants, v. DEC AVIATION CORPORATION, et al., Respondents. |
| Court | Wisconsin Supreme Court |
This is an action for damages to an airplane owned by plaintiffs-appellants, George Corning and Pierce Nolan. Defendant-respondent, Dec Aviation Corporation, operates an aircraft repair, maintenance and storage service at Truax Field in Dane county.
On November 30, 1966, plaintiffs' plane, parked outside the hangars at Truax Field, was struck by another plane, being driven by Donald F. Kohrt, an employee of Dec Aviation Company. The plane which struck plaintiffs' plane was undergoing repairs and a 100-hour inspection at Dec Aviation by Dec Aviation employees. Specifically included was repair and inspection of the hydraulic fluid system of the plane. A hose in such system was found to be leaking. On the day preceding the accident, the hose was replaced and the system tested by cycling the gears.
On the morning of the accident, Donald Kohrt was to taxi the plane being repaired about the field to test its operability. Immediately prior to such test drive, an employee of Dec Aviation, Kohrt testified, did a dip stick test of the hydraulic reservoir and found it full of fluid. Kohrt testified he observed the dip stick test, but did not observe the reading. Kohrt and two other employees of Dec Aviation manually pulled the plane outside the hangar. Starting out with the plane, Kohrt encountered a strong northwest wind which blew the plane toward certain parked airplanes on the field. He testified that he pressed the pedal to steer but found no response. He then pressed both brake pedals, but secured no response. Due to the complete loss of steering and braking mechanisms, Kohrt was unable to avoid colliding, at ten miles per hour, with plaintiffs' parked plane. It is undisputed that the nonfunctioning of brake and steering devices was solely due to the absence of fluid in the hydraulic system of the moving plane.
On February 13, 1970, the jury found no negligence on the part of the defendants. Motions were made, denied, and judgment entered on March 26, 1970. From that judgment appeal is taken.
Frank M. Coyne, Madison, for appellants.
Schlotthauer, Johnson & Mohs, Madison, for respondents.
This is a case of a parked airplane being hit by a moving airplane that was being taxied and tested by an employee of an airplane repair service. As such, it is exactly analogous to the situation where a parked automobile is struck by a moving vehicle. The status of the pilot of the moving plane is identical with that of the driver of a moving automobile.
As to the element of negligence against the driver of the moving plane, in this situation, an inference of negligence is raised which is not dissipated until the driver presents evidence that his diverting to hit the parked plane was not negligent. 1 As where a motor vehicle crosses a center line or median strip and strikes a vehicle lawfully proceeding in a proper lane of traffic, the defendant driver has the burden of going forward with evidence to prove that his diversion was nonnegligent. 2 Where a mechanical failure is established as the cause of the diversion, that does not in itself establish freedom from negligence. Evidence indicating that the mechanical defect was not discoverable by reasonable inspection must be introduced to rebut the inference of negligence. 3
In the case before us, a mechanical failure was established as the cause of the moving plane veering from its path and striking the parked plane. It is undisputed that a failure of the hydraulic system made it impossible to steer or brake the moving plane. This, combined with the strong wind that was blowing, caused the collision. The failure of the hydraulic system came from an absence of fluid in it. Immediately after the accident, the hydraulic system was checked and found to be entirely without fluid. As stated in the trial court's opinion, '* * * the failure of the hydraulic system was blamed on this. * * * ' Testimony, not controverted, established that the failure of the hydraulic system was due to and caused by the absence of fluid in it.
However, establishing the cause of the collision to be a mechanical failure does not establish nonnegligence. There remains the issue as to negligent inspection, whether under the circumstances the mechanical defect was discoverable by reasonable inspection. Such cause of action was added by motion made during the trial to conform the pleadings to the proof.
Such cause of action accepts, as it must, the fact that the collision was caused by a mechanical failure--the failure of the steering and braking mechanisms to work because of an absence of fluid in the hydraulic system of the plane. As the trial court said, '* * * the evidence offered did furnish a complete explanation of the occurrence, namely that there was insufficient hydraulic fluid in the system * * *' The basis for recovery against the plane repair company is negligence on the part of the company in permitting the plane to be operated without fluid in its hydraulic system.
The defendant company relies upon oral evidence by its employees to establish that it was not negligent in the care, repair or maintenance of the plane entrusted to it. Its employees testified that the plane involved was inspected the day before the accident and was found to have a leaking hose in the hydraulic fluid system. Their testimony was that the faulty fluid hose was replaced, the fluid reservoir filled and the system tested by cycling the gear, all on the day before the accident. An employee of defendant company testified that, just prior to the accident, he, at the request of the defendant driver, did a dip stick test and found the fluid reservoir full. The driver and another employee testified that there was no evidence of any leak or leakage anywhere about the plane at the time of the accident.
Plaintiff contends that an instruction should have been given to the jury on res ipsa loquitur since the plane, the instrumentality causing the collision, was within the exclusive control of the defendant company, and the event, the collision, was of the kind which does not...
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