Israel v. United States, 212

• Decision Date: 16 July 1957
• Docket Number: No. 212,Docket 24241.,212
• Citation: 247 F.2d 426
• Parties: Fannie ISRAEL and Mortimer H. Israel, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

247 F.2d 426 (1957)

Fannie ISRAEL and Mortimer H. Israel, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 212, Docket 24241.

United States Court of Appeals Second Circuit.

Argued March 7, 1957.

Decided July 16, 1957.

Barry, Treanor, Shandell & Brophy, New York City (Joseph J. Brophy, New York City, of counsel), for plaintiffs-appellees.

George Cochran Doub, Asst. Atty. Gen., Paul W. Williams, U. S. Atty., New York City, Amos J. Peaslee, Jr., Asst. U. S. Atty., New York City, Paul A. Sweeney and Lester S. Jayson, Attys., Dept. of Justice, Washington, D. C., for defendant-appellant.

Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.

WATERMAN, Circuit Judge.

The defendant, the United States, appeals from a judgment below entered in favor of the plaintiffs, Fannie and Mortimer Israel, in this action brought under the Federal Tort Claims Act, 28 U.S.C. A. §§ 1346(b), 2674. Mrs. Israel sued to recover damages for personal injuries, and Mr. Israel to recover for medical expenses and loss of services. Judgment in the amount of $3,000 was awarded for the former and $2,000 for the latter, after a trial before the court without a jury.

The evidence adduced below tended to establish the following facts: On September 7, 1950, I. William Smollins enplaned from the Mahopac Airport, Putnam County, New York, in a light two-seater airplane owned by a corporation of which he was the sole stockholder. With him as a guest passenger was his mother-in-law, Mrs. Israel. Their ultimate destination was Chicago. While flying over western Pennsylvania, Smollins feared a shortage of fuel and decided to make an emergency landing at the Brookville Airport in Brookville, Pennsylvania, rather than continue on to Youngstown, Ohio, which he claimed at trial was his next intended stop. The Brookville Airport was owned by the United States Government and operated under the aegis of the Civil Aeronautics Administration as an "intermediate" or emergency airfield. Its two runways were grass surfaced and adapted for the use of light planes.

Smollins landed without mishap on the east-west runway, and purchased ten gallons of gasoline from Raymond Hartley, a Government employee in charge of the field. The gasoline was sold through a private concession, and the defendant did not receive any part of the proceeds. Smollins then started to take off from east to west on the east-west runway, which was 2,200 feet long — ample distance for a plane such as his to become airborne. During the first few hundred feet of the attempted takeoff, Smollins, apparently unintentionally partially applied the brakes, which were controlled by the same foot pedal as the rudder. As a result the plane did not attain sufficient speed to become safely airborne at the proper place on the runway. Realizing this danger, Smollins applied the brakes as hard as possible, but was unable to bring the plane to a stop until it had gone over an embankment a few yards past the end of the runway. In the ensuing crash Mrs. Israel was seriously injured.

The trial court pointed out that Smollins was negligent in his handling of the plane, but that his negligence could not be imputed to Mrs. Israel, who was a gratuitous passenger. The court also found that the runway was "unusually rough" and therefore "hazardous," and that the defendant was negligent in failing to maintain and operate this airfield in a safe condition. According to the trial court, this "roughness" was a contributing cause of the accident and hence a basis for the plaintiffs' recovery.

On appeal, the defendant has devoted most of its argument and brief to distinguishing the cases relied upon by the trial court, Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, affirmed sub nom. United States v. Union Trust Co., 1955, 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 835, and to arguing that the plaintiffs were only gratuitous licensees who are not entitled to any recovery because they failed to show that the defendant had knowledge of the hazardous condition, if any, of Brookville Airport.

We do not find it necessary to discuss these contentions, however, because we are setting aside the judgment below on another ground. A close reading of the record in this case convinces us that there was no credible evidence to support the conclusion of the trial court that Brookville Airport was "unusually rough" and therefore "hazardous." To the contrary, all the authoritative testimony, including that of the witness primarily relied upon by the trial judge, was to the effect that the surface of this airfield was comparable to that of many other civilian turf airfields in the same general area. And, regardless of the legal status of the plaintiffs, the defendant's duty to the plaintiffs, if any, in the language of the trial court, was only "to maintain the surface of this airfield on a par with airfields of this type." (Emphasis added.) We believe that the defendant performed this duty.

The uncontradicted testimony of several Government witnesses, including Harry Fried, the Chief of Structures and Ground Section of Facilities Maintenance of the CAA, and Private Mato, a Pennsylvania State Trooper whose sole duty for three years prior to this accident was to investigate aircraft violations and accidents in northwestern Pennsylvania, produced the following data about the character and topography of the east-west runway: The Brookville Airport had formerly been the site of a one-mile oval race track. From the east end of the east-west runway moving west — the course of the attempted takeoff — the runway sloped gently upward at approximately a two-degree gradient for 1,200 feet. The remaining 1,000 feet gradually declined at approximately ¾ of one degree. The highest point on the field was about twenty-five feet above the lowest point, but there were no sharp inclines. The surface of the field was grass, although there were some bare spots on the runways. At the time of this accident the grass on the east-west runway was between four and six inches in height. Private Mato was permitted to testify without objection that, although grass of an average height of eight inches was considered a hazard under Pennsylvania state regulations, grass of a height of four to six inches would be "all right."

The pilot, Smollins, testified that as he attempted to take off, the left wheel of his plane seemed to hit a deep depression, which slowed the plane and jarred it from its course. He further testified that on his return to the field on the day after the accident, he found a three-foot-square hole, eighteen inches deep, about 800 feet from the west end of the east-west runway. Mr. Israel, who had accompanied Smollins to the field for this inspection, and who is a lawyer, testified that Smollins mentioned the hole, but that he, Israel, did not go out to see it. Three Government witnesses — Hartley, the superintendent of the field, Clarence Wilson, the CAA safety investigator, and Private Mato — testified that they investigated the entire field closely after the accident, particularly the area surrounding the wheel tracks of Smollins' plane, and that they found no such hole or depression. Wilson also testified that he had seen no bumps on the airfield over one-half inch high.

Smollins, in his testimony, at trial, described the airfield as being "rough" and "fairly rough" in general, and "very rough" at the particular point where he attempted to take off. He did not, however, draw any comparison between the surface of this field and that of other small grass-surfaced airfields. Perhaps significantly, on the day of the accident he did not comment to Hartley upon the condition of the east-west runway when he purchased gasoline from the latter, although he had landed on that runway a moment earlier.¹

The trial judge concluded that the Brookville field was "unusually rough," and in support of his conclusion appears to have relied exclusively on the accident reports made out by...