Hall v. Payne

• Decision Date: 07 March 1949
• Docket Number: Record No. 3419.
• Citation: 189 Va. 140
• Parties: PAULINE W. HALL, ADM'X, ETC. v. GEORGE W. PAYNE, ADM'R, ETC.
• Court: Virginia Supreme Court

Page 140

189 Va. 140

PAULINE W. HALL, ADM'X, ETC. v. GEORGE W. PAYNE, ADM'R, ETC.

Record No. 3419.

Supreme Court of Virginia, Richmond.

March 7, 1949.

Present, All the Justices.

1. APPEAL AND ERROR — Exceptions and Objections — Instructions Not Objected to Become Law of Case — Case at Bar. — In the instant case, an action based upon an airplane accident in which the two occupants of the plane were killed, an instruction for defendant was given without objection. An instruction for plaintiff was modified by the trial court over plaintiff's objection, but no complaint was made as to this in the Supreme Court of Appeals.

Held: That the principles enunciated in the instructions therefore became the law of the case.

2. AVIATION — Liability for Injuries — Accident in Which Occupants of Plane Killed — Verdict Properly Set Aside Where Cause of Accident Conjectural — Case at Bar. — In the instant case, an action based on an airplane accident in which the two occupants of the plane were killed, the pilot took plaintiff's decedent, a child, for a ride. The plane was seen a few munutes before the crash circling over rough wooded land, flying lower and lower, and witnesses said that the motor was backfiring and then either cut off or was cut off just before the crash. An expert witness for plaintiff testified that there were other spots in the vicinity where it would have geen possible for the plane to land and gave as his opinion that the pilot was not trying to land, but that the motor had power on when the plane struck and that when it fell it was either in a stall or the pilot was diving intentionally at the ground. The evidence showed that the plane was equipped with dual controls and that it was possible for the occupant of the rear seat to cut off the ignition and to move the control stick as well as the pilot. It was not contended that the doctrine of res ipsa loquitur applied under the facts shown, but plaintiff contended that the plane was flown too low, and at a dangerous altitude, for some minutes with the motor running, and that the jury could infer that this was negligently done and that such negligence was the proximate cause of the accident. The trial judge set the verdict in favor of plaintiff aside, stating in a written opinion that the probable causes of the crash could be catalogued and would be many, if the field of conjecture and speculation were entered, but that the cause of the crash had not been proven and no negligence of the pilot had been shown which was the proximate cause of the accident.

Held: That the record warranted the statement of the trial judge and required such a conclusion. It was a matter of common knowledge that airplanes fall from causes that are not ascertained, and aside from affirmative evidence that there was something wrong with the motor there was no fact proved from which a legitimate inference could be made that the crash was caused by any act of negligence of the pilot. Looking to the evidence and all proper inferences to be drawn from it, it was still a matter of conjecture as to what caused the accident.

3. EVIDENCE — Weight and Sufficiency — Proof of Mere Possibility or Leaving Issue to Conjecture Not Sufficient to Support Verdict. — To prove a possibility only, or to leave the issue to surmise or conjecture, is never sufficient to sustain a verdict.

Error to a judgment of the Circuit Court of Pittsylvania county. Hon. Kennon C. Whittle, judge presiding.

The opinion states the case.

Sanford & Clement, for the plaintiff in error.

Crews & Clement, H. H. Watson and Fielding L. Wilson, for the defendant in error.

BUCHANAN, J., delivered the opinion of the court.

This action is based upon an airplane accident in which the two occupants of the plane were killed. The main question presented is whether there was sufficient evidence of negligence on the part of the pilot to sustain a jury verdict in favor of the plaintiff for $5,000.

The plaintiff was the administratrix of Edwin Winn Hall, her son, a boy thirteen years old. The defendant was the administrator of Guy H. Carrington, a young married man twenty years old.

A few days before the accident, Carrington received his license as a private pilot. On the day of the accident, August 7, 1947, he secured a yellow cub trainer plane from Southern Airways at the Danville Airport, near Danville, and invited Edwin to take a ride with him. They left the airport at about one o'clock, flew over Danville where they gave a prearranged signal to one of Edwin's playmates, and then flew west. The plane was next sighted a few minutes before the crash, headed southwest toward the Dan river at an estimated altitude of about 1,000 feet. Just before the crash it was seen still going toward the river at an altitude of at least 500 feet.

Three witnesses for the plaintiff testified they saw the plane fall. The place where it fell was near the home of one of the witnesses, Mrs. Mize, just east of Vandola road, about ten miles west of the airport.

A few feet south of the Mize home is a plantation road, which leads into the Vandola road from the east. About 120 feet south of the plantation road, and practically parallel with it, are some electric light wires.

Mrs. Mize was walking westwardly along this plantation road toward her home when she saw this plane coming in from the north, to her right, and flying "rather low." It was then west of her and as it went by, a tree in front of her house hid it from her view. The plane made two circles, in what she described as "somewhere about ten minutes," and then came toward her from the south, over the Trammel home, about a quarter of a mile away. It then seemed to be about the same height as when she first saw it. As it came toward her from the Trammel house "it gradually got lower and lower," passing 30 or 35 feet over the top of the wires, which she estimated to be about 25 feet from the ground, crossing the plantation road at a height she estimated to be about 20 feet, and striking the ground 36 feet beyond the road. She said when the plane came over the wires it was losing altitude and falling to the ground. It came straight at her, until it got almost to her, when it seemed to drop the wing next to her, its right wing. She fell down "and when I turned around, the propeller was sticking in the ground." The plane had turned upside down, with its nose pointing south, the direction from which it came, and about two minutes later it burst into flames. The plane was destroyed and both of its occupants were burned beyond recognition.

Another witness, who saw it fall, said "it aimed to go up and turned and came straight down." The third eye-witness for the plaintiff said when the plane started on its circles it was "right high," but it got lower all the time.

The area over which the plane was circling was rough, wooded land. The spot where it fell was described as "within ten feet of being the highest spot anywhere around there." The slope there was to the north, the direction the plane was going, with trees directly in front only 15 or 20 feet away from where the plane fell.

Mrs. Mize said as the plane approached on its last trip the motor was running until it got to the Gammon house, which other testimony placed at about one eighth of a mile away, and from there it hit one time, "it just buzzed," or made "a whistling sound." Mr. Mize was in his barn and did not see the plane before it crashed, but said he heard it and that it circled twice and it sounded like the motor was running perfectly, and on the third trip "it either cut off or he cut it off," but he said he did not know anything about an airplane.

A witness for the defendant, who saw the accident, testified that the plane came over her house at "about average height;" that it flew around a little over her yard, then went toward the Gammon house; that at that time "it was popping and just looked like it was going to fall anyway;"...