Dziura v. California Aviation Service, Inc.

• Decision Date: 06 February 1970
• Citation: 84 Cal.Rptr. 191,4 Cal.App.3d 191
• Court: California Court of Appeals Court of Appeals
• Parties: Horst W. DZIURA, Plaintiff and Appellant, v. CALIFORNIA AVIATION SERVICE, INC. and Forrest Gary Rudolph, Defendants and Respondents. Civ. 25252.

Page 191

84 Cal.Rptr. 191

4 Cal.App.3d 191

Horst W. DZIURA, Plaintiff and Appellant, v. CALIFORNIA AVIATION SERVICE, INC. and Forrest Gary Rudolph, Defendants and Respondents.

Civ. 25252.

Court of Appeal, First District, Division 4, California.

Feb. 6, 1970.

As Modified on Denial of Rehearing Feb. 26, 1970.

Hearing Denied April 1, 1970.

Morgan & Moscone, San Francisco, for appellant.

Ericksen, Ericksen, Kincaid & Bridgman, Preston N. Ericksen, San Francisco, for respondents; Richard G. Logan, Oakland, of counsel.

DEVINE, Presiding Justice.

Plaintiff, a 23-year-old student at defendant corporation's school of aviation, was severely injured when he was struck by a propeller. His complaint charges defendants with negligence and, in a second count, with wanton and reckless conduct in that the school, by its pilot instructor, directed plaintiff to remove obstructions on the ground in the path of an airplane while the propeller was moving. Defendants generally denied the charging allegations and set up the defenses of contributory negligence and assumption of risk as to both causes. A jury found for defendants by general verdict, the vote being nine to three.

The accident happened when appellant and the instructor, Rudolph, had landed at the end of a lesson at Oakland Airport. It was then dark. Plaintiff had experienced 30 hours and 15 minutes of actual flying instruction, but he had never piloted a plane after sundown. He taxied the plane towards its parking site. On the taxiway there were chocks (wheel blocks) scattered in the plane's path. Rudolph admitted that he knew that a chock was right in front of the plane's left wheel. In fact, the plane had run into this chock. Nevertheless, Rudolph directed plaintiff to remove the chocks, according to plaintiff's testimony, and Rudolph, who had taken over the controls, left the propeller running, although he could have stopped it simply by turning a switch or by changing the mixture control. The latter method would have prevented an accidental restarting if a stopped propeller were brushed against.

Rudolph somewhat weakly denied that he had directed plaintiff's action, saying the act was 'mutually agreed,' but later in his testimony, he admitted that when he said 'we agreed' he meant that he told plaintiff to go and plaintiff said he would.

Plaintiff left the plane, walked towards its front, removed the chock near the wheel reached for another chock near the nose of the plane, misjudged the distance and was struck by the propeller. Rudolph testified that he had expected that plaintiff would go out to the end of the struts, and that he had been instructed at an earlier time to do so. He expected, however, that plaintiff, after going to the point where the strut meets the wing, would go forward to the front of the aircraft to move the chocks.

There were bright lights on the hangar, which may have interfered with plaintiff's ability to judge the position of the revolving propeller. This was a disputed subject. The first man on the scene after the accident testified that Rudolph said to him, while still on the scene, that the lights were too bright. (This prompted the witness, a crew chief at the airport, to inquire of Rudolph why he had not turned off the engine, a question which cannot but remain throughout the case.) Rudolph had been blinded by the same lights on an earlier occasion. He admitted at the trial that if someone asked him after the accident if it was hard to see because of the lights, he 'could have said something of this nature,' but he wasn't thinking of it at the moment.

The president of respondent company had testified on deposition that if a chock was in front of a propeller, the propeller should be shut down; but at trial he explained that he had probably instructed pilots to stop the propeller and get any chock out of the way because a chock could damage the propeller. Apparently, no rule for the protection of students was made, the matter being left to the instructors.

Rudolph conceded that he was in command, that plaintiff had a lot of confidence in him, that plaintiff was nervous, and that plaintiff was eager to comply with any request or instruction which Rudolph gave him; and although various qualifications were made on redirect examination, Rudolph did flatly concede on cross-examination that it was not only not part of plaintiff's training to have him go out because of the lights when a propeller was running, but that as a matter of fact it was a dangerous thing to do.

Other statements of fact are given under discussion of separate points of law.

The Negligence Cause

Appellant makes three points in respect of his cause based on respondents' alleged negligence. We deem them to be of less importance than is the subject of wilful misconduct because it seems as likely that the jury found the instructor to be negligent, and plaintiff to be contributorily negligent. A statement of these points and of our dispositions is given, therefore, briefly.

Point One: That the pilot had the last clear chance of avoiding an accident, but the court refused plaintiff's proposed instructions on that subject.

Disposition: The evidence is that the accident happened so soon after the descent by plaintiff from the plane that the pilot did not have a last clear chance.

Point Two: That there should have been a directed verdict.

Disposition: The court could not have taken away from the jury the issue of contributory negligence, even if the negligence were conclusively proved.

Point Three: That the court should have instructed the jury that a flight school is a common carrier and that it must use the utmost care for the safe carriage of the persons whom it carries for reward.

Disposition: The evidence does not show as a matter of law that California Aviation Service was undertaking to carry 'for all persons indifferently' (the test of the common carrier (Smith v. O'Donnell, 215 Cal. 714, 718, 12 P.2d 933), particularly in respect of student aviators), but the proffered instruction would have left no discretion to the jury as to the facts, and therefore it was not a valid instruction. (Brignoli v. Seaboard Transportation Co., 29 Cal.2d 782, 792, 178 P.2d 445; see Arrow Aviation, Inc. v. Moore, 8 Cir., 266 F.2d 488, 73 A.L.R.2d 337, in which the trial judge submitted to the jury the question of the nature of the defendant's air taxi service.) Contributory negligence is a defense available to a common carrier, even in an action by a passenger. (9 Cal.Jur.2d, Carriers, § 64, p. 759.) It seems, therefore, that the more important issue is that of wilful misconduct.

Wilful Misconduct

The court instructed the jury on the elements of wilful misconduct. Appellant offered, and was refused, instructions which stated in effect that contributory negligence is not a defense when the defendants' conduct constituted wilful misconduct. The court instructed the jury that: 'Contributory negligence is a defense to a charge of wanton and reckless misconduct, where the plaintiff's conduct is such that it is a part of defendant's wanton and reckless or willful misconduct.' At the time of the trial, in May 1967, there were expressions by some decisions of the Court of Appeal which applied the rule stated in the quoted instruction to automobile guest cases, and probably it seemed reasonable to the trial judge to apply the rule of the automobile cases to one involving an airplane. But in Williams v. Carr, 68 Cal.2d 579, 68 Cal.Rptr. 305, 440 P.2d 505, the Supreme Court disapproved the broad language of those appellate court cases (at p. 588, 68 Cal.Rptr. 305, 440 P.2d 505). To constitute a defense to wilful misconduct, the action of the plaintiff must be as reprehensible as that of defendant, i.e., conduct which shows a wilful or reckless disregard of his own safety (Id., at p. 588, 68 Cal.Rptr. 305, 440 P.2d 505).

Because the jury was incorrectly instructed, as the Supreme Court's later decision in the Williams case makes plain, respondents have been compelled to show why the judgment should not be reversed, and they have responded by advancing two propositions: (1) that no instruction on wilful misconduct should have been given, because there was no evidence sufficient to support the charge; and 2) in any event, the instruction on contributory negligence, if faulty, was not prejudicial.

We hold that it was proper to instruct on wilful misconduct. If a verdict had been rendered in favor of plaintiff, based upon an affirmative answer to a special interrogatory to the jury on the subject of wilful misconduct, or if plaintiff had proceeded on the wilful misconduct count only, we would have no hesitation in upholding a plaintiff's verdict. Therefore, the instruction on contributory negligence, as applied to wilful misconduct, was an important error.

Our reasons for holding that a verdict based upon wilful misconduct would have been sustained are these:

1. The disparate positions of the student and the instructor. The student had but 30 hours of flying time; the instructor, between 3,700 and 4,000 hours. Section 91.3 of the federal regulations on aircraft reads: 'The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.' (14 C.F.R. 91.3(a).) Rudolph admitted not only that he was in command, but that he had charge of the controls at the time of and just prior to the accident. Rudolph admitted in his testimony that in the early stages of their training students are 'generally on the nervous side' and that plaintiff himself was nervous; further, that plaintiff was eager to comply with any request or instructions given him by Rudolph and that he had a lot of confidence in Rudolph. It surely could be inferred by the finders of fact that there was a combination of the paramilitary sort of instructions which are necessary in aviation (the flight before the accident had been one in which 'stalls' had...