Finfera v. Thomas, 8537.

• Citation: 119 F.2d 28
• Decision Date: 07 April 1941
• Docket Number: No. 8537.,8537.
• Parties: FINFERA v. THOMAS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

119 F.2d 28 (1941)

FINFERA v. THOMAS et al.

No. 8537.

Circuit Court of Appeals, Sixth Circuit.

April 7, 1941.

L. G. Vandeveer, of Detroit, Mich. (Ralph E. Wisner and Vandeveer, Vandeveer & Haggerty, all of Detroit, Mich., on the brief), for appellant.

S. T. Mason and James R. Walsh, both of Detroit, Mich. (Mason, Davidson & Mansfield, of Detroit, Mich., on the brief), for appellees Roland and Gilbert Thomas.

James R. Walsh and Paul E. Krause, both of Detroit, Mich., for appellee City of Detroit.

Before HICKS, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

This tort action, arising out of a ground collision between two airplanes, reaches us on appeal by the plaintiff from the judgment of the District Court on a directed verdict in favor of the defendants. The scene of the accident was the Detroit Airport; the time, 8 o'clock in the evening of July 31, 1937, while it was still daylight.

Appellant, a twenty-five year old graduate in mechanical engineering of Ohio State University, had received an air pilot's private license while in college, and had made, in the company of the owner as copilot, four or five flights in a small, light Aeronca airplane, equipped with dual controls and designed primarily for student training. The young man was not familiar with the machine, so Mason, its owner, was teaching him its characteristics, preparatory to permitting him its use for solo flights.

Coming in from the southwest, headed into a northeast wind, appellant circled the field at 500 feet altitude and throttled down about 1,000 feet from the airport. Making observations as he descended and seeing no planes on the ground, but receiving no signals from the signal tower, he landed; and, after rolling an estimated 100 to 200 feet, came to a full stop on the east side of the north and south asphalt and concrete runway. In a pivoting position, he swung the plane to the right and looked for traffic. He saw no moving plane in the near vicinity and, after checking the signal tower and receiving no signal, he assumed that it would be safe to proceed and taxied south toward the apron of the L shaped field at a maximum speed of 7 or 8 miles and an average rate of 4 or 5 miles an hour.

Appellant was sitting on the left-hand side and the copilot on the right-hand side of the plane. Each aviator wore earphones. Appellant, before landing, had been listening to instructions given by the signal tower operator to the pilot of an incoming airliner and knew that a landing would be made in his immediate vicinity; but he had not learned from the conversation how far the airliner was from the airport. Appellant had "a vivid straight eyesight vision toward the south" and, as he taxied along, was looking toward the right, which was the direction from which he expected the airliner to land.

Before starting to taxi toward the apron, appellant looked once to the left, but could not state definitely how far he was from the runway when he looked. On direct examination, he estimated the distance at 200 to 300 feet.

On cross-examination, appellant testified: "I brought my plane around in a sort of a half circle. I swished its tail at that time so I had a view of the sides. That was the time that I looked to the left. That was the only time I looked to the left; and that is when I was 150 feet or more away from the east and west runway. After I glanced to the left, I looked to the right all the time after that, observing the traffic. I looked at the signal tower; I didn't receive any signal. I received no red lights nor green lights nor white lights; nor did I receive any information on the radio. Irrespective of that, I proceeded to cross this runway. I at no time saw the Thomas plane. There was nothing there to obstruct my vision. The field was clear."

Later, he repeated that from the time he turned around on the runway he made no further observation to the east (that is, to his left) "until the impact of the accident." He asserted: "The one thing I did do was keep an eye on the signal tower. * * * If I hadn't been relying on the signal tower, I would have looked more to the east than I did look to the east * * *."

He argued that "it is my claim that there wasn't any moving plane within a distance of 800 feet at the time I made my observation 100 to 150 feet from the point of the accident"; but he admitted that "there wasn't anything that would have obstructed my view if I had looked to the left, when I was a distance of 50 feet from the point of the accident." He did not see the Stinson plane, with which he collided until it was 25 or 30 feet from him — too late to avoid the accident.

The Stinson, a commercial airplane owned by appellees Thomas Brothers, had been parked along the northeast boundary of the apron and was moving west on the east and west runway at an estimated speed of 25 or 30 miles an hour. Appellee Roland Thomas, who was operating it, testified that immediately after leaving the loading ramp, he saw six or seven hundred feet away the plane operated by appellant, parked on the field and not in motion.

Thomas testified: "I didn't see Mr. Finfera land. * * * When I observed him, he was stopped on the field. I knew it wasn't customary for planes to stop on that portion of the field where the plane was stopped. I hadn't any idea where he would go, but I knew he would move. I was looking ahead and to my right out of my plane as I proceeded through that 600 feet. In that distance, I didn't see the plane. I looked ahead. I knew it was over there. Notwithstanding it was over there, I never saw it again until the time of collision."

The propeller of the Stinson plane, located in front, struck the left wing and cut through to the cabin of the plane in which appellant was riding, with the result that appellant sustained serious personal injuries.

When appellant rested his case upon these facts, the District Judge directed a verdict for appellees on the ground that the proof showed appellant had been guilty of such contributory negligence as would bar his recovery as a matter of law. The District Court found, also, that the operator of the airplane owned by appellees, Thomas Brothers, had been guilty of negligence of such character as to preclude any recovery by them.

Appellant's assignments of error present three propositions. (1) It is insisted that whether he exercised due care before starting to taxi across the field was a question for the jury. Ryan v. Detroit Citizens' Street Railway Company, 123 Mich. 597, 82 N.W. 278; Erdman v. Detroit United Railway Company, 175 Mich. 691, 141 N.W. 542; Lefevre v. Roberts, 250 Mich. 675, 230 N.W. 917; Swainston v. Kennedy, 253 Mich. 518, 235 N.W. 240; Scurlock v. Peglow, 263 Mich. 658, 249 N.W. 35. (2) It is urged that the issue of due care was for the jury, in view of appellant's right to rely upon the maintenance and operation of light and radio signals by the City of Detriot. Lockett v. Grand Trunk Western Railroad Company, 272 Mich. 219, 261 N. W. 306; Motyka v. Detroit, Grand Haven & Milwaukee Railway Company, 256 Mich. 417, 240 N.W. 29; Travis v. Eisenlord, 256 Mich. 264, 239 N.W. 304. (3) The further contention is made by appellant that whether Thomas Brothers were guilty of negligence which proximately contributed to appellant's injury was a jury question, not only by common law but pursuant to Section 4816, 1 Compiled Laws of Michigan for 1929; as was likewise the fact issue of negligence of the City of Detroit "by virtue of maintaining and operating a signal tower and issuing instructions and traffic regulations in connection with the same."

No increased hazard of liability, but only normal responsibility is placed upon appellees by virtue of the Michigan Aircraft Statute, supra, which provides: "...