Hueske Implement Co. v. Shipley

• Decision Date: 10 September 1968
• Docket Number: No. 3676,3676
• Citation: 445 P.2d 9
• Parties: HUESKE IMPLEMENT COMPANY, Inc., Appellant (Plaintiff below), v. James L. SHIPLEY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 9

445 P.2d 9

HUESKE IMPLEMENT COMPANY, Inc., Appellant (Plaintiff below), v. James L. SHIPLEY, Appellee (Defendant below).

No. 3676.

Supreme Court of Wyoming.

Sept. 10, 1968.

David A. Scott, of Murane, Bostwick, McDaniel & Scott, Casper, for appellant.

J. T. Langdon, Worland, for appellee.

Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, Hueske Implement Company, Inc., brought an action against the defendant, James L. Shipley, to recover damages claimed to have been inflicted upon plaintiff's 1956 Beechcraft G-35 Bonanza aircraft as the result of collision between it while parked on a parking ramp at an airport in North Platte, Nebraska, and a B-26 aircraft negligently being taxied by the defendant.

The pretrial order recites, among other things, that plaintiff's claim of negligence on the part of the defendant was based upon defendant's failure to keep a proper lookout and that defendant, although admitting the time and place of the accident, denied such claim. In addition the defendant interjected the following affirmative defense:

'* * * Defendant further claims that at all times herein, he was maneuvering his airplane under the direction of the F.A.A. Flight Service Station in North Platte, Nebraska. That he was in direct contact with the Flight Advisory and that he was given authority by said Flight Advisory to taxi his plane. * * * Defendant, therefore, contends that the collision was the result of the negligence of the personnel of the F.A.A., * * * and that defendant either taxied into this airplane pursuant to instructions or the suction created by defendant's propellers caused plaintiff's plane to move into the right propeller.'

Following trial of the case the trial judge, sitting without a jury, entered judgment for the defendant. In support of the judgment the trial court found generally for the defendant; that defendant was not negligent; and with respect to defendant's affirmative defense made the following special finding:

'* * * That the time complained of, Defendant was maneuvering his plane under the direction of the Flight Service Station at North Platte, Nebraska, and that the taxiing of said aircraft was pursuant to these directions. * * *' (Emphasis supplied.)

Plaintiff has appealed, claiming in substance that the trial court erred as a matter of law in finding that the defendant was not negligent when he taxied his plane into plaintiff's aircraft. From our review of the record we are persuaded that the trial court in disposing of the case adopted the theory of defendant and in this we think the trial court was under some misapprehension as to the responsibilities of the defendant and the functions of a flight service station and the duties of its personnel. For such reason we have concluded that the judgment must be reversed and the case remanded for new trial. We will therefore confine our consideration as much as possible to the facts and the law pertinent thereto.

Unfortunately the sketch depicting the physical layout of the airport and the initial location of both parties' aircraft placed upon the blackboard during trial was not preserved and we have encountered some difficulty in reconstructing the sketch. Generally speaking, however, there is little dispute that the airport was owned and operated by the City of North Platte. The administration building in which the F.S.S. was housed at ground level faced to the south and adjoined on the north what was identified as a concrete-surfaced 'parking ramp' and 'loading ramp' which measured approximately 300 feet by 350-400 feet. Adjoining this ramp on the south approximately at the center was a 'taxi ramp' leading south to the runways. This was not a 'tower-controlled' airport.

The Bonanza was parked in the southwest corner of the parking ramp approximately 35 feet from the west edge of the concrete. Sometime prior to the time the Bonanza was parked the defendant had parked the B-26 upon the parking ramp, but because of congestion he was requested to move it. By whom is not clear. Nevertheless, just prior to the accident the B-26 was parked on the 'sod' facing east some 65 feet almost directly behind the Bonanza. According to the testimony of the defendant the B-26 was so constructed and equipped that his vision, particularly to the right, was limited and he could not see the Bonanza after entering the B-26. His counsel emphasizes such fact and says the defendant 'was dependent upon ground help for maneuvering this aircraft.' (Emphasis supplied.)

For several days prior to the accident the B-26 was being used for 'slurry bombing' a fire in the Halsey Forest and defendant had been flying in and out of the airport during that time. On the day of the accident the B-26 was loaded with slurry, which was no longer needed, and the material being corrosive the defendant had gone to the airport for the purpose of obtaining permission from the airport manager to dump the slurry in an area near the south end of the airport. Although such permission had not been granted at the tiem of the collision, it is the testimony of the defendant that he entered the B-26 sometime between 3:45 or 3:50 p.m. and just before doing so had observed the parked Bonanza. Upon entering the plane the defendant made contact by radio with the F.S.S., requesting an 'advisory' for purposes of taking off, and began warming up the engines. Some ten minutes after receipt of the 'advisory' the defendant, as the pilot and lone occupant of the B-26, started to maneuver it in order to get upon the parking ramp and it was during such maneuver that the accident occurred.

The critical question here is whether such 'maneuvering' was done 'under the direction of the F.S.S.,' as the trial court found. The answer lies in the status and purpose of an 'advisory.' As an experienced and licensed pilot, the defendant is charged with knowledge of the safety rules and regulations of the F.A.A. applicable to a flight service station and will not be heard to assert to the contrary. Severs v. Abrahamson, 255 Iowa 979, 124 N.W.2d 150, 152; Marshall Produce Company v. St. Paul Fire and Marine Insurance Company, 256 Minn. 404, 98 N.W.2d 280, 291. In this respect it no doubt would have been most helpful to the trial court had counsel for either of the parties furnished copies of such rules and regulations lawfully adopted by the F.A.A. and published in the Federal Register, and which under the rationale of Logan v. Pacific Intermountain Express Company, Wyo., 400 P.2d 488, 492, would form a part of the law of the case of which the courts take judicial notice. See 44 U.S.C.A. § 307 (1967 Cum.Supp.), Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428, 432; Brandes v. Mitterling, 67 Ariz. 349, 196 P.2d 464, 467; and see Sims v. Southern Bell Telephone & Telegraph Company, 111 Ga.App. 363, 141 S.E.2d 788, 789; Morrison v. Hutchins, 158 Kan. 123, 144 P.2d 922, 924; Severs v. Abrahamson, supra, 124 N.W.2d at 151; Lilly v. Grand Truck Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 352, 87 L.Ed. 411. Whether, under the circumstances here, we would be warranted in giving effect to such rules and regulations we need not decide. Plaintiff's witness Chester A. Bruner, without objection, testified as to the scope and effect of an advisory rendered by a flight service station.

Bruner said that he had been in charge of the F.S.S. at North Platte from june 1942 and was on duty on May 14, 1965, at the time of the accident. He said that on request the station...