Greunke v. N. Am. Airways Co.

• Decision Date: 29 April 1930
• Citation: 201 Wis. 565,230 N.W. 618
• Parties: GREUNKE v. NORTH AMERICAN AIRWAYS CO.
• Court: Wisconsin Supreme Court

201 Wis. 565

230 N.W. 618

GREUNKE

v.NORTH AMERICAN AIRWAYS CO.

Supreme Court of Wisconsin.

April 29, 1930.

Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge. Reversed, with directions.

Action begun April 16, 1929; judgment entered August 17, 1929.

Action for damages to plaintiff's airplane by reason of a collision therewith by defendant's airplane, through the negligence of the defendant's pilot in operating its airplane.

The defendant answered by way of general denial, alleging negligence of the plaintiff, and by way of counterclaim for damages to defendant's plane.

The action was tried before a jury, which rendered a special verdict to the effect that the pilot of the defendant's plane failed to exercise the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct and operation of an airplane in making a landing at an airport; that the damage which plaintiff's airplane sustained was the natural and probable result of such want of care on the part of defendant's pilot; that defendant's pilot, as a person of ordinary intelligence and prudence, ought reasonably to have foreseen that injury to airplanes or aviators upon the runways in question might probably follow from such want of ordinary care; that the plaintiff, in operating his airplane on the runway at the time in question, did not fail to exercise the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct, management, and operation of an airplane on making a landing on a runway in an airport under the same or similar circumstances, having due regard to the law regulating the operation and management of airplanes when landing on a runway in an airport; that the market value of plaintiff's airplane, in that vicinity, just before it was damaged was $2,250, and its market value in that vicinity immediately after it was damaged, was $600. The jury also found against the defendant on its counterclaim.

The defendant made the usual motion to set aside the verdict, which was denied, and judgment was entered thereon in favor of the plaintiff for $1,650, together with interest and costs. The defendant appealed, and assigned as errors that the court improperly instructed the jury, and in denying its motion for judgment on the ground of plaintiff's contributory negligence as a matter of law.

Albert H. Krugmeier and Joseph Witmer, both of Appleton, for appellant.

Frank, Wheeler & Pelkey, of Appleton, for respondent.

CROWNHART, J.

The appellant, on the day of the accident, operated an airport located between the cities of Appleton and Menasha, and was engaged in maintaining general airport landing facilities, hangar rental service, transportation of passengers, freight, and mail, giving instructions to students, selling airplanes, and generally dealing in accessories to airports.

Elwin West was an agent of the appellant, and was licensed by the Department of Commerce of the United States as an airplane transport pilot and as an aviation mechanic.

The respondent was the owner of an airplane, which he kept at the defendant's airport. He also was a licensed pilot, holding a transport license from the Department of Commerce.

On the afternoon of the day in question, the respondent went to the appellant's airport to take up passengers in his airplane. He ran his plane out on to a runway to make a test flight. The airport had several runways intersecting each other at a central point and oriented in different directions. The runway used by both respondent and West was oriented northeast and southwest. It was 3100 feet long and 120 feet wide. It was narrower than the usual runway. West preceded the respondent on the runway, with an airplane of the appellant, and took off for a flight with a student who was in training for a pilot. The respondent followed in his test flight, and, while he was in the air, West made one or two landings with the student. The respondent came in and made a landing while West was in the air. It was what is termed a “dead stick” landing; that is, the motor stalled before the plane landed. As soon as respondent's plane stopped on the runway, the respondent got out and endeavored to start the motor so as to remove his plane from the runway, but, before he could get the motor started, West came in with his plane and landed on the runway, just behind the respondent. West's plane bounded as it struck the runway, and collided with respondent's plane, resulting in damage to both planes.

This is the first case in this court involving a collision of airplanes, resulting damages, and the law applicable thereto.

It is conceded that there are no statutes governing the operation and management of the airplanes at the time and place of the accident. The rules of law applicable to torts generally govern in this case. Both pilots were licensed under the United States Department of Commerce, and it may be assumed that they were familiar with the rules of the Department applicable to licensed aviators, and that, in the exercise of ordinary care, they should comply with such rules, and it seems to be conceded that among such regulations are the following:

“The take-off shall not be commenced until there is no risk of collision with landing aircraft and until preceding aircraft are clear of the field.”

“A landing plane has the right of way over planes moving on the ground or taking off.”

“An aircraft in distress shall be given free way in attempting to land.”

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