Gatenby v. Altoona Aviation Corporation
Decision Date | 19 December 1968 |
Docket Number | No. 17186.,17186. |
Citation | 407 F.2d 443 |
Parties | Patricia Meryl GATENBY and Percy Evans, Administrators of the Estate of Ian Alexander Gatenby, Deceased and May Thora Mole, Executrix of the Estate of John Henry Mole, Deceased v. ALTOONA AVIATION CORPORATION and Paul Peterson, Altoona Aviation Corporation, Appellants. |
Court | U.S. Court of Appeals — Third Circuit |
James F. Manley, Burns, Manley & Little, Pittsburgh, Pa. (Louis R. Dadowski, Pittsburgh, Pa., on the brief), for appellants.
David Rein, Forer & Rein, Washington, D. C. (Joseph Forer, Washington, D. C., Hymen Schlesinger, Pittsburgh, Pa., on the brief), for appellees.
Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.
This is a case, arising under Federal diversity jurisdiction, where an airplane in which the plaintiffs' decedents1 were passengers crashed and all persons were killed.
On December 8, 1963, at 1:00 P.M., Mark Riguette, the pilot of a single engine air charter plane, owned and operated by the defendants, took off from Peterson Field2 to pick up two passengers at Washington, D. C., National Airport. While en route to Washington, he received a weather briefing from the Phillipsburg flight service station3 indicating that a cold front was moving from Eastern Ohio into Western Pennsylvania. At approximately 2:55 P.M., the plane landed at the Washington National Airport, picked up the passengers, and departed for University Park Airport at State College, Pennsylvania. Although the pilot obtained no weather briefing before leaving Washington, he contacted the pilot-to-forecaster service at 3:12 P.M. while over Frederick, Maryland. The service informed him that there was an indefinite ceiling of 1200 feet at Phillipsburg, with visibility of two miles; that there would be moderate icing and turbo-severe turbulence along his route; and that the front would lower the ceiling to 1000 feet and visibility to one or 1½ miles. The forecasting service did not expect the front to reach Phillipsburg for another two or three hours. At 3:17 P.M., shortly after the communications between Frederick and the pilot were concluded, the forecasting service altered its prediction. According to the new forecast, it was expected that the ceiling would drop to 500 feet and visibility would be limited to one-half mile. The revised forecast was repeated by all weather stations along Riguette's route at 3:45 P.M. and was available to him upon request at any time after 3:17 P.M.
The pilot did not land at University Park as planned, but radioed Peterson Field at 3:50 P.M., reported that he was over Port Matilda,4 and advised that he would land at Peterson. By the individual co-defendant's own admission (he was the only witness called by defendants who testified to any of the conditions surrounding the accident), the ceiling at Peterson was then only 800 to 1000 feet. At 3:59 P.M., the plane crashed into Bald Eagle Mountain5 while in a level flight cruise condition, heading due west during a heavy snowstorm. The pilot and both passengers were killed in the crash.
Altoona Aviation Corporation appeals from a judgment for plaintiffs entered on December 7, 1967, after judgment n. o. v. had been entered for plaintiffs on the liability issues following a jury verdict at the first trial in defendants' favor, which was followed by a second jury trial limited to the damage issues.6
Since substantially all of the plaintiff's evidence was adduced by testimony, the appellant claims that the District Court was precluded from entering a judgment n. o. v. by the Pennsylvania oral evidence rule,7 which provides, according to appellant, that it is the province of the jury in trespass cases, where oral testimony is concerned, to pass upon the credibility of witnesses, even though uncontradicted by defendant's witnesses or even though defendant introduces no testimony at all. We find it unnecessary to determine the extent of this Pennsylvania rule or its application to the situation presented in the case now before the court.
Irrespective of the applicability of the above Pennsylvania oral evidence rule, which cannot be determined with certainty by a federal court in view of the language in the Pennsylvania cases, the federal decisions make clear that, insofar as this rule attempts to define when the jury must decide, as its function, whether the particular elements of liability exist, it would be operating in a field reserved for federal law. See Lind v. Schenley Industries, Inc., 278 F.2d 79, 84 (3rd Cir.), cert. den. 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960); Denneny v. Siegel et al., 407 F. 2d 433, (3rd Cir. 1969), and cases there cited. Where the party having the burden of proof produces evidence which establishes the facts in his favor so clearly that reasonable men could have no doubt, he is entitled to a verdict directed in his favor. Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Herron v. Southern Pacific Company, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931).8 Therefore, the standard against which judgment n. o. v. must be tested is the standard contained in Mihalchak v. American Dredging Company, 266 F.2d 875, 877 (3rd Cir. 1959), where we said:
On the basis of that standard, we hold that the trial court committed no error in granting judgment n. o. v., since, on this record, the pilot of the illfated plane was negligent as a matter of law.
The substantive law of Pennsylvania, which we are bound to follow,9 holds that a common carrier owes its passengers the duty of exercising the highest degree of care. Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964). This duty is violated by negligence per se which arises from the violation of a governmental safety regulation. Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936); Gaskill v. Melella, 144 Pa.Super. 78, 18 A.2d 455 (1941). As the pilot of a single engine aircraft, Riguette was required to fly according to FAA visual flight regulations (VFR). Reasonable men could come to no other conclusion on this record but that certain visual flight regulations were violated. The appellant is, of course, liable for any injuries which were proximately caused by this negligence per se. Ennis v. Atkins, 354 Pa. 165, 47 A.2d 217 (1946).10 The following uncontroverted facts show violation of at least these enumerated regulations:
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