Coyner Crop Dusters v. Marsh

• Decision Date: 06 December 1961
• Docket Number: No. 6543,6543
• Citation: 367 P.2d 208,90 Ariz. 157
• Parties: COYNER CROP DUSTERS, an Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants, v. W. O. MARSH et al., Appellees.
• Court: Arizona Supreme Court

Page 208

367 P.2d 208

90 Ariz. 157

COYNER CROP DUSTERS, an Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants, v. W. O. MARSH et al., Appellees.

No. 6543.

Supreme Court of Arizona, In Banc.

Dec. 6, 1961.

Rehearing Granted April 3, 1962.

Cox & Cox and Marion R. Smoker, and Ira Schneier, Phoenix, for appellants.

Snell & Wilmer and Donald R. Kunz, and James H. O'Connor, Phoenix, for appellees Marsh & Nicholson.

Lewis, Roca, Scoville & Beauchamp, Phoenix, for appellees Paradise Aviation Co. and Leonard Pemberton.

JENNINGS, Justice.

In a consolidated action for wrongful death and destruction of an airplane, plaintiffs appeal from a verdict and judgment for defendants. Parties will be designated as in the trial court. Plaintiffs are Elizabeth Coyner, wife of decedent, executrix, and Coyner Crop Dusters, a corporation. Defendants are W. O. Marsh et al., a partnership, Carl Nicholson, Paradise Airport, a corporation, and Leonard Pemberton.

The death and destruction was caused by a ground collision of two crop duster planes on the 'duster strip' at Paradise Airport situated northwest of Phoenix, Arizona. This strip is located at the west side of the airport and runs north and south. Stacked at the north end and westerly side of the duster strip were sacks of insecticide to be loaded in the insecticide planes (biplanes with open cockpits, the front cockpits of which have been converted to hoppers or bins for holding insecticide dust).

On July 14, 1952 the decedent, Jack D. Coyner, of the Coyner Crop Dusters Corporation had just completed a landing on the south end of the strip and was taxiing in a northerly direction toward the insecticide sacks when he collided with another insecticide plane owned by defendant Marsh Aviation Company and piloted by defendant Nicholson.

Nicholson, who was new to the Phoenix area, on July 14, 1952, flew Marsh's plane to the Paradise Airport and inquired of defendant Pemberton, the airport manager, the method of operating insecticide planes off of that airport. Accordingly Pemberton informed Nicholson that landings and take offs on the north-south runway (duster strip) were from north to south. At the same time Pemberton showed Nicholson the rules and regulations containing this information which were at that time displayed on the Administration Building lobby bulletin board.

Thereafter, Nicholson taxied to the insecticide where his plane was loaded by two loader boys. The record indicates that Underwood, an employee of Coyner Corporation, flew into the duster strip from south to north on two occasions while Nicholson's plane was being loaded. Underwood testified that during these landings which were made in a manner contrary to the instructions received that day by Nicholson, he, Underwood, saw Nicholson standing out away from the Marsh plane with nothing obstructing his view of Underwood's landing. After obtaining his second load of insecticide dust, Underwood took off to the south. His plane blew up a cloud of dust 25 to 30 feet high; air movement of one to three miles per hour was from the southwest. Nicholson waited until he could see clearly the length of the runway that he would use on the take off, i. e., to the point where he estimated he would become airborne. He testified that there was dust beyond that point. The collision took place just short of the point where Nicholson indicated that he would have become air-borne. At the time of the collision Nicholson was traveling approximately 50 mph and Coyner was taxiing at the speed of 7 to 10 mph. Nicholson testified that he did not see Coyner until just a 'few moments' before the crash at which time the planes were about 25 to 30 feet apart.

Plaintiffs bring thirty-seven formal assignments of error many of which are subdivided with the result that a total of approximately seventy-five claimed errors are before this Court for review. To discuss and rule on these assignments seriatim would involve treatise-like proportions. Therefore, we will treat the errors in terms of the general propositions of law and major issues which they bring to focus.

Throughout this opinion we are governed by A.R.S. § 2-208. Aircraft collisions; law governing liabilities which reads as follows:

'The liability of the owner of one aircraft to the owner of another aircraft or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air shall be determined by the law applicable to torts on land.'

The first principal question involving the applicability of plaintiffs' first proposition of law reads as follows: When the undisputed evidence shows that a defendant is guilty of gross, willful, or wanton negligence, the trial court (a) shall instruct the jury as to the legal effect of such undisputed evidence and (b) shall not give instructions which exclude the legal effect of such negligence.

As an abstract statement of law, plaintiff's proposition is correct. Phen v. All American Bus Lines, 56 Ariz. 567, 110 P.2d 227. However, this abstract consideration does not apply to the instant case which is lacking in premises vital to its operation. The rule requires undisputed evidence. Evidence may not be characterized as 'undisputed' if it is at variance with facts and circumstances or reasonable inferences to be drawn therefrom, or from other evidence. Burkhart v. Lasley, 182 Okl. 43, 75 P.2d 1124; Warren v. Griffing, 200 Okl. 108, 190 P.2d 1014. The evidence on which plaintiff rely falls short of such a test. For example, plaintiffs offer as an 'undisputed inference' the conclusion that because Underwood landed from south to north and saw Nicholson that Nicholson by the same token saw Underwood land in this manner. Whereas Nicholson's testimony was unequivocally to the contrary.

'Q. Did you see Mr. Underwood come in? A. No sir.

'Q. If you were told, or if Mr. Underwood stated that while you were loading that first load that he had landed or did land on the duster strip from south to north, would that refresh your memory as to how he got there? A. I seen nobody land in that manner.

'Q. You didn't see Mr. Underwood land at all as you recall? A. No sir.

'Q. Do you recall while you were at the loading area and out of your plane seeing Mr. Underwood land his plane on the duster strip? A. No sir.'

Plaintiffs argue that the 'to look is to see doctrine', Barry v. Southern Pacific Company, 64 Ariz. 116, 166 P.2d 825, should be applied in this case, and contend that the testimony elicited above to the effect that Nicholson did not see the Underwood plane land is negative evidence and is subject to the negative evidence rule. We must hold otherwise. The witness not only stated that he did not see Underwood land, but that he saw nobody land from south to north. He did not merely state that he 'didn't remember'; rather he answered that he did not 'recall' underwood's landings for the reason that he did not observe them.

Even assuming such evidence to be negative it is not such evidence as is subject to the so-called 'negative evidence rule.' This rule concerns itself with the establishment of the existence or nonexistence of a fact, e. g., whether a certain notice was posted or whether a certain bell was ringing. Jeune v. Del E. Webb Construction Co., 76 Ariz. 418, 265 P.2d 1076; Canion v. Southern Pacific Co., 52 Ariz. 245, 80 P.2d 397. Consequently the rule has no operation herein for we are not concerned here with the existence of the fact in question (i. e. whether Underwood did land from south to north), but with Nicholson's knowledge of that fact (i. e., whether he saw Underwood land). The fact in question, Nicholson's knowledge, was fully met by his repeated testimony that he had no such knowledge, and the jury was entitled to so find.

The evidence is also disputed as to whether Nicholson once landed contrary to instructions received. Then too, plaintiffs lay stress on the 'undisputed fact' that Coyner landed on the 'unobscured' portion of the landing strip ignoring the testimony that dust was present on a portion of Coyner's landing run and that he taxied straight into the dust, beyond the point where apparently he could have removed his aircraft from the runway.

Nor is there any merit in plaintiff's assertion that there was a direct violation of General Flight Rules, Sec. 60.31(d), as set forth in plaintiffs' Requested Instruction No. 19. The regulation in question reads:

'When outside of control zones and control areas, no person shall operate an aircraft in flight when the flight visability is less than one mile.'

As this regulation expressly states, it pertains to visability while in flight. Therefore the facts of record do nothing whatever to show a violation of the regulation. Visability was unlimited so far as the general atmosphere was concerned. The dust in question was located only over a portion of the landing strip.

No directed verdict was possible for it is universally recognized that before a verdict can be directed, the evidence must be such that reasonable minds could not differ upon the inferences to be drawn from the facts the propriety of a directed verdict being confined strictly to those cases where reasonable minds cannot so differ. Ong v. Pacific Finance Corp. of California, 70 Ariz. 426, 222 P.2d 801; Scott v. Scott, 75 Ariz. 116, 252 P.2d 571.

Also it appears that plaintiff's argument is based largely on the premise that Nicholson was guilty of gross, willful or wanton negligence, but that Coyner, on the other hand, was not so guilty. In effect, plaintiffs ask that the negligence of Nicholson and the contributory negligence of Coyner be assumed, but seek to overcome Coyner's contributory negligence by invoking the doctrine of Alabam Freight Lines v. Phoenix Bakery,64 Ariz. 101, 166 P.2d 816, that a finding of wanton negligence, etc., will overcome the bar of contributory negligence. In Butane Corp. v. Kirby, 66...