Jones v. O'Bryon, 50661

CourtUnited States State Supreme Court of Iowa
Citation116 N.W.2d 461,254 Iowa 31
Docket NumberNo. 50661,50661
PartiesTroy JONES, Appellee, v. George O'BRYON, Appellant.
Decision Date24 July 1962

Kennedy, Kepford, Kelsen & White, Waterloo, for appellant.

Haupert & Robertson, Marshalltown, for appellee.

MOORE, Justice.

Preparatory to obtaining a pilot's license, defendant on April 16, 1958, in a Luscombe airplane rented from plaintiff, made a solo cross-country flight from Eldora to Charles City, to Garner, and then returned to Eldora. At Eldora the plane approached from the north and on first contact with the ground bounced about 20 feet in the air, bounced again, proceeded south down the runway, veered off the runway, flipped over and was damaged beyond repair.

In this action for damages defendant contended the crash was caused by cross-air turbulence. Plaintiff contended the turbulence, if any, was not marked and therefore of no consequence and in any event defendant failed to exercise ordinary care in making the landing irrespective of weather conditions.

The case was tried to the court. The court found defendant attempted to make a 'power-off stall landing', made a poor landing, flew the plane toward the ground at high speed instead of stalling it near the earth, lost control of the plane and locked the brakes, all of which caused the plane to overturn with the resulting damages. The court also found the main cause, or at least a concurring proximate cause of the crash, was defendant's flying the plane into the ground and locking the brakes, contrary to his training and experience, and his deviation from correct procedure was too great for even a student.

From a judgment for $1400 and costs defendant has appealed.

I. Defendant's first contention is that the court erred in overruling objections to the testimony of plaintiff and the witness John Butler.

Plaintiff testified he had been a licensed pilot about 15 years, had flown his Luscombe airplane several years, using the Eldora field, he was not at the field but about two miles away when the crash occurred, he had observed the weather conditions that morning prior to and after the crash, in his opinion the wind velocity at the field was about 15 miles per hour at the time of the crash.

He was then asked his opinion as to how much of the strip it would have taken to land that airplane that morning. Defendant objected, asserting the answer would be irrelevant and immaterial to any issue in the case as the basis on which any opinion might be given was too vague, indefinite and entirely too remote. The objection was overruled. Plaintiff answered, 'A thrid of the field, a third of the runway.' We shall decide the question raised with those involving opinions of the witness Butler.

John Butler testified he was a licensed airplane pilot of many years; he held a commercial license, single and multi-engine rating; he held instructor's and instrument ratings; he held a ground instructor's rating for aircraft and engines, meteorology, civil aeronautics regulation and navigation, to acquire these various ratings requires a considerable amount of study and instruction; for 10 or 11 years he had been an instructor, he had instructed from 50 to 60 students, one of whom was defendant. He testified defendant had 50 hours flying time, had received 16 hours instruction before he soloed and before the accident defendant had been given complete instruction as to the proper methods of making a landing. Most of the instructions were given in plaintiff's airplane.

Butler testified he went to the scene of the accident soon after it occurred, at which time he observed the plane in its damaged condition, together with tracks and other conditions then existing at the scene. In his opinion there was then a wind velocity from the southwest of approximately 15 miles per hour. Butler stated defendant told him at the time of the landing the wind velocity was about 15 miles per hour from the southwest with some gusts and turbulence.

To a series of questions over defendant's objections the evidence was irrelevant and immaterial, remote and speculative and improperly invaded the province of the court as no proper foundation had been laid, Butler was permitted to give his opinions based on observation and knowledge as follows: a student with 50 hours should have adequate experience to contend with gusts of 15 miles per hour or a straight wind of 15 miles per hour coming out of the southwest on the day in question; a student with 50 hours of flying time and with the instruction defendant had should not have encountered any degree of difficulty in making a landing on the day of the mishap under the conditions then existing; a person with 50 hours of flying time and with the instruction defendant had should have been able to make the three types of landings to which the witness referred; he believed the airplane initially touched down at a proper point with respect to the length of the runway but the tracks indicated it took off again, touched down a second time, took off again and finally touched down a third time and came to an abrupt halt; the airplane was flying at the time of the attempted landing and it had not been stalled for a landing; the primary factor causing the airplane to bounce was that the stick was not held back and a secondary factor was the cross-wind; because the stick was not back there was not enough pressure on the tail to hold the craft down when the brakes were applied; the plane was flown into the ground with sufficient speed that it caused the craft to jump into the air; a man with 50 hours flying time such as defendant had should have been able to safely land the plane under the circumstances; what caused the airplane to turn over at the end of its run that day was primarily the failure to have the stick back and secondarily application of the brakes so the wheels were locked and not turning.

In Brower v. Quick, 249 Iowa 569, 578, 88 N.W.2d 120, 125, we said:

'It is well settled in Iowa that if a witness is possessed of special training, experience, or knowledge in respect to the matter under investigation, and if his opinion based on evidentiary facts will be of aid to the jury in reaching a correct conclusion, and if the opinion expressed does not bind the jury to accept it, but leaves the ultimate conclusion to be determined by the judgment of the jurors themselves, such testimony is not improper nor prejudicial.'

We also so held in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646; Waterloo Sav. Bank v. Waterloo, C. F. & N. R., 244 Iowa 1364, 60 N.W.2d 572; Brady v. McQuown, 241 Iowa 34, 40 N.W.2d 25, and Roberts v. Koons, 230 Iowa 92, 296 N.W. 811.

The admission of opinion evidence rests largely in the sound discretion of the court and considerable leeway is allowed in this field of evidence for the reason that no matter how the opinion question is phrased or formulated, it remains an opinion which the trier of facts is at liberty to reject. Therefore only in clear cases of abuse would admission of such evidence be found prejudicial. Doane v. Farmers Co-operative Co., 250 Iowa 390, 94 N.W.2d 115, 81 A.L.R.2d 128; Brower v. Quick, 249 Iowa 569, 88 N.W.2d 120; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 29 N.W.2d 204.

The Grismore case, often referred to as the leading one in Iowa involving the questions raised by defendant's objections, was thoroughly discussed by the trial court and counsel. In its many rulings the court diligently attempted to follow the law as established by that opinion.

We hold the trial court did not abuse its discretion in receiving the opinion of plaintiff and those of the witness Butler.

II. Defendant next contends the trial court erred in not applying the doctrine of sudden emergency. In Young v. Hendricks, ...

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