Johnston v. Canton Flying Services, 37506

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: HALL
• Citation: 209 Miss. 226,46 So.2d 533
• Parties: JOHNSTON v. CANTON FLYING SERVICES, Inc.
• Docket Number: No. 37506,37506
• Decision Date: 22 May 1950

Page 533

46 So.2d 533 209 Miss. 226 JOHNSTON
v.
CANTON FLYING SERVICES, Inc. No. 37506. Supreme Court of Mississippi, in Banc. May 22, 1950.

[209 MISS 228] Barnett, Jones & Montgomery, Jackson, Nelson Cauthen, Canton, for appellant.

[209 MISS 229] Watkins & Eager, Jackson, for appellee.

[209 MISS 230] HALL, Justice.

Appellant brought suit against appellee for the recovery of damages on account of the death of her husband,[209 MISS 231] Howard L. Johnston, who was killed in an airplane accident on February 15, 1948. The declaration contains two counts. The first count alleges that the defendant negligently furnished the deceased, who was a student for hire in its pilot's training school, with an airplane which was defective and not reasonably safe because there was a leak in the gasoline gauge which permitted the cabin of the plane to fill with dangerous vapor and fumes as a result of which there was great danger of a fire and explosion in the cabin with probable fatal results to its occupant, and that this condition was known to the defendant, and that by reason of said condition the said airplane did explode and ignite while in flight and fell to the ground and burned Johnston to death. The second count is based upon the doctrine of res ipsa loquitur.

Upon conclusion of plaintiff's evidence the trial court sustained a motion for a directed verdict as to the second count and overruled a similar motion as to the first count. Thereupon defendant's evidence was submitted and the trial court refused a peremptory instruction requested by defendant and submitted the case to the jury upon instructions announcing the rule that the defendant owed the deceased the duty to exercise reasonable care to furnish him a reasonably safe airplane in which to make the flight. The jury returned a verdict for plaintiff in the amount of $12,500, whereupon

Page 534

defendant immediately made a motion for judgment in its favor non obstante veredicto. The trial court sustained this motion on the ground that defendant was entitled to a peremptory instruction and rendered judgment in favor of the defendant, from which plaintiff appeals and contends that the evidence was sufficient to make a case for decision by the jury and that we should reverse the judgment of the trial court and enter judgment here in her favor upon the jury's verdict.

Deceased completed his first course and obtained a private pilot's license before October 22, 1947. Up to [209 MISS 232] that date he had flown the plane in question on numerous occasions. After that date he had not flown it until the day of the fatal accident. He had been working in Jackson and decided to a take a course looking toward his obtaining a commercial pilot's license and went back to Canton on the day of the accident to begin this second course. He had not flown a plane since October 22, 1947, and the instructor in charge went up with him for a short trial flight to see that deceased still knew how to properly handle a plane. After he was fully satisfied in that respect they landed the plane and the gasoline tank was then filled and deceased took off alone for a cross country flight which was due to carry him to Jackson, thence to Vicksburg, and thence back to the Canton field. In a short time thereafter, while the plane was in flight, two different witnesses heard a loud 'pop' described by one of them as being louder than the back-fire of an automobile, whereupon the plane headed straight down and when it neared the ground it gradually leveled off at a height described as being about the distance of one tree on top of another. Fire and smoke were pouring from the sides and rear of the plane. It went a distance of about one-half to three-fourths of a mile and crashed. The cabin and rear portion of the plane were burned and the deceased was burned to death without escaping from the cabin. There was a fire-wall separating the cabin from the motor and the motor showed no signs of fire, all the evidence of fire being behind the firewall.

The windshield and side windows of the cabin were constructed of a material commonly known as plexi-glass. On one side the windows were of the sliding type so that an opening could be made. On the other side they were securely fastened. The windshield and windows were all in place when deceased took off on this flight. Shortly after the crash witnesses made a search of the ground near the point where the loud 'pop' occurred and found scattered over a wide area numerous pieces of plexi-glass ranging in size from about half a window on [209 MISS 233] down to minute particles. One of defendant's witnesses testified that there is no doubt that these pieces of plexi-glass came from the plane which crashed. A map was seen to blow from the plane before it crashed and it was identified as being the same type of map carried on all planes of the defendant.

From all these facts and circumstances which are not disputed in the record the jury was warranted in finding that the plane crashed and deceased met his death as a direct and proximate result of an explosion and fire in the cabin of the plane. The next question which naturally presents itself is what caused the explosion and fire and whether there were facts from which the jury were warranted in finding that the defendant was guilty of negligence which proximately caused or contributed thereto. This necessitates a review of the evidence in that respect, and we may add that there was little, if any, dispute in any of the material facts.

The machine in question was an Aeronca light cabin plane. The motor fuel was gasoline and was kept in a tank in front of the cabin. This tank was filled through an opening with a screw cover just in front of the windshield. A pipe ran from the tank a short distance toward the rear to the instrument panel just behind the windshield and terminated in a gasoline gauge there located. This gauge had an open face with a glass covering and was automatically operated by a float in the gas tank so that the pilot of the plane could tell...