Davies v. Oshkosh Airport, Inc.

• Decision Date: 06 February 1934
• Citation: 252 N.W. 602,214 Wis. 236
• Parties: DAVIES v. OSHKOSH AIRPORT, INC.
• Court: Wisconsin Supreme Court

214 Wis. 236

252 N.W. 602

DAVIES

v.OSHKOSH AIRPORT, INC.

Supreme Court of Wisconsin.

Feb. 6, 1934.

Appeal from a judgment of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge.

Action by Oliver L. Davies against the Oshkosh Airport, Inc. From a judgment in favor of plaintiff, defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action by plaintiff to recover for damages to his airplane which were sustained in alighting on a hayrake, which defendant had permitted to be on its landing field. On the trial the jury returned a special verdict that defendant's negligence in permitting the rake to be left on the field was a cause of plaintiff's damage, and that plaintiff's pilot did not fail to exercise ordinary care in respect to attempting to land on an unlighted field at the time of such landing, or in respect to keeping a proper lookout for objects on the field. Defendant's motions after the verdict to have the court change the jury's answers to the questions in the verdict were denied. Judgment was ordered in favor of the plaintiff; and defendant appealed.

Barber, Keefe, Patri & Horwitz and W. Mead Stillman, all of Oshkosh, for appellant.

Hugh W. Goggins, of Wisconsin Rapids, for respondent.

FRITZ, Justice.

On this appeal defendant contends that under undisputed evidence Clyde Lee, the pilot of plaintiff's airplane, was negligent, as a matter of law, in landing without having a proper lookout for objects on the field before he landed. The following facts were established beyond dispute: The accident happened July 10, 1928, at about 8 p. m., while the sun was still shining, on a rectangular landing field, which was maintained by defendant, and which was 2,600 feet long from north to south, and 1,300 feet wide. Plaintiff usually kept his airplane on that field and had started from there on that day, while men were engaged in cropping the hay on the field. At the time of the accident plaintiff was returning to the field. He and a guest were riding in the forward cockpit of the airplane, which was being piloted by Lee. They approached the field from the northwest, in a northwest wind. At an altitude of 500 feet the airplane skirted the west side of the field, circled the south end by banking to the east, and then, heading northwest, approached the field from the southeast and crossed the east boundary about 990 feet from the southeast corner, in order to alight on a landing runway which extended in a northwesterly direction. The airplane was landed on top of a new side delivery hayrake, which was on the landing runway, about 150 feet west of the east line of the field. The rake was new. Its wheels were painted yellow, and the rest of it was red. Under the existing conditions it was readily observable at a distance of 500 feet, excepting in so far as the view thereof was defeated by conditions hereinafter mentioned. Lee died before the trial, and he never testified in this cause. Plaintiff and the guest in the cockpit could not see what Lee was doing, and, as there was no other witness, there is no testimony as to whether Lee was or was not keeping a lookout, or observing to see what was on the runway when he undertook to land.

[1] In the operation and control of the airplane it was Lee's duty to exercise ordinary care. Greunke v. North American Airways Co., 201 Wis. 565, 230 N. W. 618, 620, 69 A. L. R. 295. However, as we said in that case: “Ordinary care differs under different circumstances. It is such care as the danger of the situation and the consequences that may follow an accident demand. The care used must be commensurate with the dangerous consequences to be reasonably apprehended. Ordinary care is the same at all times, but ordinary care...