Farish v. Canton Flying Services, No. 38244

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: LEE
• Citation: 58 So.2d 915,214 Miss. 370
• Parties: FARISH et al. v. CANTON FLYING SERVICES, Inc.
• Decision Date: 19 May 1952
• Docket Number: No. 38244

Page 915

58 So.2d 915 214 Miss. 370 FARISH et al.
v.
CANTON FLYING SERVICES, Inc. No. 38244. Supreme Court of Mississippi. May 19, 1952.

214 Miss. 371] Satterfield, Ewing, Williams & Shell and John S. Holmes, Jackson, for appellants.

[214 Miss. 372] Watkins & Eager, Jackson, Ray, Spivey & Cain, Canton, for appellee.

[214 Miss. 373] LEE, Justice.

Mrs. Susie C. Farish, widow, and Bettie Carol and Larry Donald Farish, minor children, instituted their suit against Canton Flying Services, Incorporated, to recover damages for the alleged negligent death of their husband and father, L. D. Farish. At the close of the evidence for the plaintiffs the court sustained a motion to exclude and to direct a verdict for the defendant. From the judgment entered thereon, the plaintiffs appeal.

The appellee qualified with the Veterans Administration, and was authorized to instruct and train veterans to become private and commercial pilots. Farish entered training and, in due course, obtained a license as a private pilot. He then decided to continue his training for the purpose of acquiring a license as a commercial pilot. While so doing, on October 24, 1947, his plane crashed, and he received injuries

Page 916

from which he died several days later. The declaration charged several grounds of negligence, namely, (1) failure of appellee to supply the plane with enough gasoline for the flight and to place a cap on the tank to retain the gasoline; (2) insufficient training of Farish to fly the Ryan plane in which he was injured; and (3) allowing a small boy to ride in the plane as a passenger.

[214 Miss. 374] Before recapitulating the evidence to determine whether or not it made out a case as against a peremptory, it must be kept in mind that such 'evidence must be treated as proving every fact favorable to plaintiff's case which is established either directly or by reasonable inference.' Johnston v. Canton Flying Services, Inc., 209 Miss. 226, 46 So.2d 533, 535; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Kurn v. Fondren, 189 Miss. 739, 198 So. 727; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Dean v. Brannon, 139 Miss. 312, 104 So. 173.

It is also necessary to keep in mind the general principle that actionable negligence may be proved by circumstances. In Johnston v. Canton Flying Services, Inc., supra, [209 Miss. 226, 46 So.2d 535.] it was said that 'negligence may be established by circumstantial evidence in the absence of testimony by eyewitnesses provided the circumstances are such as to take the case out of the realm of conjecture and place it within the field of legitimate inference, and further in this connection that the causal connection between an agency and the injury sustained need not be shown by direct evidence.' See also Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582; 38 Am.Jur., Negligence, par, 333, p. 1032.

With these general principles as the straightedge, we proceed to a statement of the facts and their measurement, along with the logical inferences therefrom.

Farish's flight record showed that he had 14 hours and 50 minutes of dual control, that is, flying with an instructor, before he soloed. Thereafter over a given period, he had 2 hours additional of dual against 55 hours and 25 minutes of solo flying. His private flight check of 1 1/2 hours on July 25, 1947, was unsatisfactory, and he was then given 5 additional hours of dual instruction between July 31 and August 4. His training for private pilot's license was taken in Piper Cubs or Aeroncas. These were light planes, of large wing area, with a 65 [214 Miss. 375] horsepower motor, and a maximum speed of 70 to 75 miles an hour. The Ryan was heavier, of less wing spread, with a 165 horsepower motor, and was faster. Farish had only 2 hours and 5 minutes of dual instruction in the Ryan.

Four eyewitnesses testified as to the manner of the crash. Three of these witnesses indicated that the plane was about a mile away and from 'pretty high' to 'about 1500 feet', and 'around 2000 feet', when they first saw it. It rolled, waived a time or two, and went into a bank; or wobbled its wings, made a circle, and went into a bank; or made a counter-clockwise circle, according to their several versions. Two of them heard a loud popping and sputtering sound and the motor ran no more. One of them said it sounded like a car backfiring. It did not level or straighten out of the bank. It then came on down to the ground. The fourth witness thought the plane was going to hit her house. She said the motor roared and stopped. It then went on again; then stopped; and she did not...