Johnston v. Canton Flying Services, 37506

• Decision Date: 22 May 1950
• Docket Number: No. 37506,37506
• Parties: JOHNSTON v. CANTON FLYING SERVICES, Inc.
• Court: Mississippi Supreme Court

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.

Barnett, Jones & Montgomery, Jackson, Nelson Cauthen, Canton, for appellant.

Watkins & Eager, Jackson, for appellee.

HALL, Justice.

Appellant brought suit against appellee for the recovery of damages on account of the death of her husband, 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 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 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 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 at a glance how much gasoline was in the tank. A screw cap held the glass covering in place over the dial, and, according to the evidence of the only licensed airplane mechanic who testified, there should have been a gasket both below and above this glass so as to prevent the escape of gasoline and fumes or vapor from the gasoline tank into the cabin of the plane.

Four witnesses for the plaintiff and two for the defendant testified that the gauge on this plane had been leaking both gasoline and fumes for a considerable length of time, at least two of them putting it as far back as December 1947. The plane had not been inspected by a licensed mechanic since prior to November 1, 1947, though there was evidence that it was due to be inspected at least twice a week. At the request of appellee two efforts had been made by a student pilot, who was not a mechanic, to stop the leak, but without success. He had put on only one new gasket each time when he should have used two. These gaskets cost five cents each. After these attempted repairs to the gauge it continued to leak, it was common knowledge around the air field that it was leaking, and this was known to at least one of defendant's instructors in charge of its training courses. The leak was much worse when the gasoline tank was full, and it was shown that with a full tank not only the fumes but also pure gasoline would ealk around the defective gauge, sometimes emerging in a spurt or spray. On some occasions the cabin had become so impregnated with gasoline vapor that the pilot would become afraid to fly it any further and would bring it back to be field and refuse to use it again. It will be noted that all this evidence dealt with the condition of the plane after Johnston had completed his course and stopped flying on October 22, 1947. There is no evidence that he had any knowledge whatsoever of its condition when he began his fatal flight on February 15, 1948.

It was shown by the testimony of an expert in chemistry that gasoline vapor when mixed with air will explode upon contact with a spark of fire but cannot explode without such contact. Indeed this conclusion is a matter of common knowledge. The evidence discloses that there was an air vent in the metal portion of the walls of the cabin on each side...