Goldsmith v. Martin Marietta Corporation

• Decision Date: 09 November 1962
• Docket Number: Civ. No. 12653.
• Citation: 211 F. Supp. 91
• Parties: Edna S. GOLDSMITH, Thomas A. Goldsmith, II, Infant by Edna S. Goldsmith, his mother and next friend, James M. De Vinne, Administrator of the Estate of Thomas R. Goldsmith, deceased, and Norbert B. Bowers, Administrator of the Estate of George M. Bowers, deceased, and E. Rosalie Tygert, individually, and as Administrator of the Estate of Donald W. Tygert, deceased; Ben J. Bowers; Patricia Keaton; William Thompson; Conger, Infant by Patricia Keaton, his mother and next friend; and Thomas C. Ward, Administrator of the Estate of William T. Conger, deceased v. MARTIN MARIETTA CORPORATION and The Bendix Corporation (a Delaware corporation).
• Court: U.S. District Court — District of Maryland

211 F. Supp. 91

Edna S. GOLDSMITH, Thomas A. Goldsmith, II, Infant by Edna S. Goldsmith, his mother and next friend, James M. De Vinne, Administrator of the Estate of Thomas R. Goldsmith, deceased, and Norbert B. Bowers, Administrator of the Estate of George M. Bowers, deceased, and E. Rosalie Tygert, individually, and as Administrator of the Estate of Donald W. Tygert, deceased; Ben J. Bowers; Patricia Keaton; William Thompson; Conger, Infant by Patricia Keaton, his mother and next friend; and Thomas C. Ward, Administrator of the Estate of William T. Conger, deceased v.MARTIN MARIETTA CORPORATION and The Bendix Corporation (a Delaware corporation).

Civ. No. 12653.

United States District Court D. Maryland.

November 9, 1962.

Daniel I. Sherry, Washington, D. C., Harvey Rosenberg and Claude B. Kahn, Bethesda, Md. (James M. De Vinne, Cleveland, Ohio, and Vilas M. Swan, Rochester, N. Y., of counsel), for plaintiffs.

Benjamin C. Howard, Baltimore, Md., for defendantMartin Marietta Corp.

Norwood B. Orrick, Baltimore, Md., for defendantBendix Corp.

NORTHROP, District Judge.

This action arises out of the deaths of the pilot and three other crew members of a scheduled passenger airliner which, on December 1, 1959, crashed on Bald Eagle Mountain near Williamsport, Pennsylvania.The plane was an Allegheny Airlines Martin 202, No. N-174A, and all of her passengers, except one, were killed.A motion for summary judgment made on behalf of the Martin Marietta Corporation was granted on May 7, 1962, because of the plaintiffs' failure — in the face of their own admissions — to establish either negligence or proximate cause.Now to be considered is the motion for summary judgment made on behalf of the sole remaining defendant, The Bendix Corporation.

I

Although the plaintiffs' Second Amended Complaint is quite lengthy, the allegations therein concerning the liability of Bendix are succinctly stated as follows:

"4.Certain of the navigational instruments contained in said aircraft, including an instrument known as the fluxgate compass and the fluxgate compass caging switch, were designed and manufactured by DefendantThe Bendix Corporation.The fluxgate compass system was not part of the original equipment but was installed by parties unknown to plaintiffs sometime after the aircraft had been manufactured by The Martin Company.The repeater direction indicators for this sytem were installed on the instrument panels.The control was installed at the same location as the automatic pilot pedestal controller.The caging switch was designed and manufactured without a guard.

"5. * * *

"The negligence of The Bendix Company consisted of designing and manufacturing the fluxgate caging switch without a guard.

"Because of the negligence of the defendants in the design and manufacture of the aforesaid * * * instruments, the aircraft crashed and the death of the aforenamed decedents resulted therefrom, when the aircraft went off course as the result of the inadvertent and unknowing actuation of the unguarded fluxgate compass caging switch.This caused the repeater directional indicators to give improper readings.This was not readily ascertainable to the crew because of the overhead location of the standby compass."

Thus, the action against Bendix is based solely upon negligence relating to its design and manufacture of the Flux Gate compass system.

This system is an ingenious mechanism which enables the navigators of aircraft to obtain correct directional information, undistorted either by the magnetic influences of the aircraft or by the position of the aircraft relative to the earth's surface.The Flux Gate itself is simply a triangular-shaped electronic core, but it is the heart of the entire system.Accurate compass readings are given only when this triangle is parallel to the horizontal component of the earth's magnetic field.To keep the Flux Gate in this position, irrespective of the plane's maneuvering, it is mounted perpendicular to a vertical-seeking gyro.Actuation of the Flux Gate compass caging switch commences a cycle in which the gyro is erected to a position vertical to the aircraft.However, in order for the gyro correctly to set the Flux Gate, this erection cycle must take place when the gyro will reach a position not only vertical to the plane, as it always does, but also vertical to the earth's surface.That is, when the gyro is erected, the plane should be either in level flight or at rest on level ground.Generally speaking, if the gyro were erected when the plane was in a bank, for instance, the readings given by the compass would be inaccurate.However, these inaccuracies would exist only temporarily.If the plane is not level during the erection cycle (as, indeed, it would not be when on the ground), a rolling-ball type mechanism automatically continues to raise the gyro until it is vertical with respect to the earth, regardless of the plane's position.

It is the plaintiffs' contention that the unguarded caging switch — which, actually, is a button — was inadvertently and unknowingly activated while the plane was in a bank preparatory to landing at the airport in Williamsport.This is claimed to have caused incorrect positioning of the gyro and Flux Gate with consequent temporarily incorrect directional information, which was relied upon by the crew during the course of the plane's fateful instrument landing.Bendix denies that this is how the accident occurred; but, for the purposes of the present motion, this set of facts may be assumed to be correct and undisputed.¹

It is to be noted that the sole act of negligence which the plaintiffs assign to Bendix is the design and manufacture of the caging switch without a guard.It is not contended that any element of the compass system functioned improperly.The plaintiffs merely urge that the button should have been protected by means of a metal cylinder embracing it, or by some other type of guard.²

Bendix admits that it designed, manufactured, and supplied all of the elements of the Flux Gate compass system aboard the aircraft when it crashed, except the caging switch.Who installed the entire system and when it was installed are unknown.It was not in the plane when delivered by Martin in 1947, and the plane passed through a succession of owners prior to the accident.

It is undisputed that the caging switch unit aboard the aircraft was not manufactured, supplied or installed by Bendix.Bendix ceased manufacturing such a unit sometime prior to August 1950 because all of its components were readily available from other manufacturers of electrical equipment.However, the caging switch unit previously manufactured by Bendix did not have a guard protecting the button from accidental actuation, just as the unit in the aircraft did not.

It is the plaintiffs' contention that the caging switch in the aircraft was constructed by reference to the plans and designs of Bendix.³If the plans were available to whoever constructed and installed the switch, they were contained in an installation, operation and maintenance manual which, on its very cover, indicated that it was not provided for that purpose.Although nothing in the record suggests that Bendix had specific knowledge of the use of its plans in constructing this particular switch, it nonetheless is fair to infer that Bendix reasonably could have anticipated that its plans would be consulted in the construction of some switches.In many instances prior to August 1950, and in all instances thereafter, Bendix sold its compass system without a switch.A switch was essential to the system and, as recently as 1957, the Bendix maintenance manual contained a photograph and dimensional drawing of such a switch — a button-type switch with the button unprotected by a guard.A purchaser of the Bendix compass system, in constructing the necessary switch, could refer to and follow completely the Bendix design, or could refer to and modify the Bendix design, or could produce a switch according to his own design.In the instant case, the unknown builder apparently pursued the second alternative.While the two units are markedly dissimilar in size, shape, means of construction and arrangement of elements, their respective buttons, telltale lamps and instruction plates are very much alike.⁴But, regardless of which course of action was pursued, Bendix would have had no measure of control over the situation, beyond striking the photograph and drawing from any manual provided to the purchaser of its system without the caging switch.

II

The plaintiffs contend that a recovery may be had against one who negligently designs an item, even though the item is subsequently manufactured by one other than the designer.In the abstract, this proposition does not seem unsound, and it requires but little imagination to state a situation in which liability might be predicated upon negligent design and nothing more.⁵The question is whether this is such a case.

For the moment, we shall assume that Bendix was negligent in failing to include a guard in its design of the switch.We also shall assume that Bendix could have foreseen the use of its design, the inadvertent actuation of the switch, and all of the possible attendant consequences.⁶Yet it is impossible to escape the conclusion that there were at least two independent intervening acts of negligence between that of Bendix and the crash of the aircraft.

First, if it was negligent of Bendix to design the switch without a guard, it was no less negligent for some unknown person to construct it without a guard.Such an inference is altogether warranted.Assuming the Bendix manual was consulted by whoever constructed the caging switch in the plane,⁷ it is undisputed that it contained two warnings, among others.It warned against the navigational hazards created by incorrect positioning of the Flux Gate, and it further warned that such incorrect positioning could result from...