Eastern Air Lines v. United States, Civ. A. No. 1055.

Decision Date01 December 1952
Docket NumberCiv. A. No. 1055.
Citation110 F. Supp. 491
PartiesEASTERN AIR LINES, Inc. v. UNITED STATES.
CourtU.S. District Court — District of Delaware

William Bennethum, of Morford, Bennethum, Marvel & Cooch, of Wilmington, Del., and Joseph Henderson, of Rawle & Henderson, of Philadelphia, Pa., for plaintiff.

James L. Latchum, Asst. U. S. Atty., of Wilmington, Del., and James B. Spell, Sp. Asst. to the Attorney General, for defendant.

LEAHY, Chief Judge.

1. Plaintiff, Eastern Air Lines, Inc., is a Delaware corporation. Defendant is the United States of America.

On July 12, 1945, plaintiff was owner of an aircraft known as a Douglas DC-3, registered with the appropriate agencies of the Government, bearing U. S. Registry No. NC-25647.

On July 12, 1945, defendant was owner of a certain Army aircraft known as an A-26, bearing Army Serial No. 44-35553.

On July 12, 1945, plaintiff's aircraft was being operated upon a duly scheduled commercial flight.

The commercial plane having aboard seventeen passengers, three children, one an infant, and a crew of four, while on a trip from New York to Miami, and then in the vicinity of Florence, South Carolina, was struck in mid-air by the United States Army bomber, when the pilot was practicing military maneuvers. A skillful and courageous crew brought the damaged Eastern airliner to a successful and dramatic forced landing in a cotton field, thereby saving the lives of all aboard the plane, with the exception of the infant. It was killed by the impact and the flying debris from the bomber. For the loss of its airplane, Eastern has brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b) and 2671, to recover the value, which has been admitted to be $95,500.

The sole fact question for decision is whether the Army bomber was operated negligently, so as to cause the fateful collision; and, whether plaintiff was free from contributory negligence.

Captain Gaston D. Davis, Eastern's pilot, who has been a pilot since 1926, with 13,000 to 14,000 flying hours in the air at the time of the trial, and 6,000 to 7,000 flying hours in the air at the time of the accident, at trial, said: "Well, I saw the Army plane, I guess — I would say a split second, I will say a split second before the impact. He was on my left, at least ninety degrees from a forward point, ninety degrees to the left and maybe a little more than ninety degrees back from my angle of sight, being zero in front of you, going counter-clockwise around to ninety degrees or better to my left. He appeared to be in a slightly gliding or diving attitude. I had such a slight sight of him I don't have any idea where he came from or what he was doing prior to that."

Mr. Odom, an impartial witness who observed the collision from the ground, testified:

"Q. Now, Mr. Odom, immediately before the impact as you observed these craft before they actually collided, was the bomber behind or in front of the left wing of the airliner? A. Behind it."

On that Sunday, defendant's aircraft was operated by First Lieutenant Stephen G. Jones, then on active duty, pursuant to orders, upon a regularly assigned training mission, and acting within the scope of his employment by defendant. Norman Lawrence Martindale was second pilot or co-pilot for the airliner.

Plaintiff Eastern operates as an air carrier under a certificate of public convenience and necessity issued pursuant to the Civil Aeronautics Act of 1938, as amended. Eastern is authorized to engage in air transportation with respect to persons between various points, including Boston, New York, Washington, Columbia, South Carolina, Jacksonville, Florida and Miami, Florida. Eastern's Flight 45 that Sunday, July 12, 1945, was scheduled to depart from Boston at 8:55 A.M. and terminate at Miami. On this flight, Airplane DC-3, No. NC-25647, departed from Boston at 8:55 A.M.; arrived in New York at 10:00 A.M.; departure was made from New York at 10:30 A.M. and arrived at Washington at 12:03 P.M.; departure from Washington was made at 12:22 P.M., having been delayed three minutes in placing an ill passenger on board.

Defendant's Douglas DC-3 was properly certificated at the time of the collision, and the captain and co-pilot were likewise properly certificated and qualified for the duties of Flight No. 45. At the time of the accident, Captain Davis had, with respect to his plane, 3,000 or 4,000 hours of flying a DC-3 type of aircraft. He also held a certificate of the CAA as Airline Transport Pilot, Land, 80 to 3,650 horsepower; no waivers. Captain Davis was familiar with the route which he was flying, having traversed it at least 5 times a month for a considerable period of time prior to the accident. Plaintiff's aircraft was being flown upon a VFR flight clearance (contact flight, visual reference to the ground, as opposed to an instrument flight clearance). When plaintiff's plane arrived and was crossing Pee Dee River, South Carolina, Captain Davis took the controls from Co-Pilot Martindale. It was customary for airline pilots, in the exercise of due care, to fly slightly to the right of the civil airway when in the vicinity of Florence, South Carolina since the aircraft would then pass to the right of the Florence Army Base which, to the best of Captain Davis' knowledge, from his past experience, was a congested area in which Army pilots were training for wartime duties. In fact, it was customary to fly to the right of this airway, not only to avoid the heavy air traffic in the vicinity of the Florence Army Air Base, but to avoid heavy air traffic in the vicinity of Fort Sumter, Shaw Army Air Field and Congaree Field, all of which were in the vicinity.

At the time of the accident, which occurred at 2:40 or 2:41 P.M., plaintiff's plane was in an unqualified legal area, where it had an absolute right to be. The area had not been in any wise designated by the CAA, or any other agency of the United States Government, as restricted, forbidden or as a danger zone.

The accident occurred at a point between Darlington and Lamar, South Carolina. A "Notice to Airmen" issued by CAA, at the time of this accident, provided commercial pilots were advised to use caution while flying within a 25-mile radius of an Army Flying Base, but were not restricted to flying in some other flight area to avoid an Army base. Plaintiff's airplane was at an altitude of approximately 3,100 feet, and its indicated air speed was approximately 175 miles per hour, while defendant's airplane was being operated at an indicated air speed of 220 miles per hour.

Visibility was approximately 10 miles or better. Skies were clear, with the exception of a few scattered clouds.

Prior to collision, plaintiff's plane was being operated, as stated, to the right of the civil airway at a distance of about 6½ to 7 miles therefrom, and was descending at a rate of 200 feet per minute; a normal rate of descent of a commercial airliner with passengers aboard. It was proceeding on a magnetic heading of approximately 240 degrees, which is, in fact, a southwesterly heading. Captain Davis first saw the Army bomber over his left shoulder a split second before the impact, and at a time when the Army bomber was to Captain Davis' left at an angle of, at least, 90 degrees or better from a forward point of plaintiff's plane, counting degrees from the nose of the airliner in a counter-clockwise manner. When Captain Davis first saw the Army bomber, it was in a slightly diving or gliding attitude. The Army bomber apparently approached plaintiff's plane from the left and from the rear. Captain Davis instantly took necessary action to avoid an imminent collision.

The wings of the Eastern airliner, it was shown, taper rearward from a point just beyond the engines, the sweepback being at a 15 degree angle. The first point of impact between the two planes was the vertical fin or the vertical portion of the tail section of the Army bomber with the leading edge of the left wing of the airliner, the right side of the fin scraping along the leading edge of the wing in the direction of the left engine nacelle of the Eastern airliner. The vertical fin of the Army bomber then severed the left engine of the airliner, striking it at the spar or root; the Army bomber then passed directly underneath and passed partially under the right wing and slightly forward. The top gun turret and tail cone of the Army bomber, in passing underneath the airliner, struck the right propeller and knocked it off and also damaged the dome section of the propeller. The angle of departure of the Army bomber from the airliner was approximately 110 degrees, counting counter-clockwise from the nose of the airliner. Based upon the testimony both for and against plaintiff and defendant, as to the position of the planes at the point of collision, the angle of approach of the Army bomber to the airliner was, therefore, approximately from 90 to 110 degrees measured counter-clockwise from the nose of the airliner.

Human remains and blood were found, after the accident, beneath the entire length of the right wing of the airliner, resulting from the Army gunner being killed — his head was cut off — when the top gun turret of the bomber came into contact with the right propeller of the airliner. The observer of the Army bomber also met death that afternoon. Note: there were cuts in the gasoline tanks of the airliner which are located on the underside of the Eastern plane between the two engines.

The initial impact between the two planes caused parts of the tail section of the Army bomber to become lodged in the left side of the fuselage of the airliner, and particularly in the baggage section of the airliner which is forward of the leading edge of the airliner's left wing. Certain parts of the left horizontal stabilizer and elevator were found after the accident in the baggage compartment of the airliner; the baggage compartment is forward of the wings of...

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3 cases
  • Kerlin v. Washington Gas Light Co.
    • United States
    • U.S. District Court — District of Columbia
    • March 9, 1953
    ... ... C. A. No. 3254-50 ... United States District Court District of Columbia ... ...
  • Eastern Air Lines v. United States
    • United States
    • U.S. District Court — District of Delaware
    • January 30, 1953
    ...110 F. Supp. 499 ... EASTERN AIR LINES, Inc ... UNITED STATES ... Civ. A. No. 1055 ... United States District Court D. Delaware ... January 30, 1953.110 F. Supp. 500         William Bennethum, of Morford, ... ...
  • Eastern Air Lines, Inc. v. United States, 11069.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 19, 1953
    ...destroys the validity of the operative facts contended for by the United States. The court below, in a carefully considered opinion, 110 F.Supp. 491, reached the conclusion that the United States was negligent. We The judgment of the court below will be affirmed. ...

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