Lassetter v. Henson

• Decision Date: 06 July 1979
• Citation: 588 S.W.2d 315
• Parties: Willie H. LASSETTER, Plaintiff-Appellant, v. Eunice Inez HENSON, Executrix of the Estate of John C. Henson, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 315

588 S.W.2d 315

Willie H. LASSETTER, Plaintiff-Appellant, v. Eunice Inez HENSON, Executrix of the Estate of John C Henson, Defendant-Appellee.

Court of Appeals of Tennessee, Western Section, at Knoxville.

July 6, 1979 Certiorari Denied by Supreme Court Aug. 27, 1979.

John K. Morgan, Hugh P. Garner, Morgan, Garner, Wood & Guthrie, Chattanooga, for plaintiff-appellant.

Raymond H. Moseley, Humphreys, Hutcheson & Moseley, Chattanooga, for defendant-appellee.

EWELL, Judge.

This is an appeal from a judgment, based on a jury's verdict, dismissing an action for personal injuries.

Willie H. Lassetter filed suit against Eunice Inez Henson, executrix of the estate of John C. Henson, for personal injuries received in an airplane crash on January 9, 1975. Lassetter was a guest passenger in the four passenger Piper aircraft owned and flown by John C. Henson at the time of the accident in which Henson was killed. Eunice Inez Henson, widow of John C. Henson, was duly qualified as executrix of his estate. Plaintiff charged that Henson negligently operated the aircraft in several particulars specified in the complaint and also relied upon the doctrine of Res ipsa loquitur.

The defendant filed an answer denying negligence on the part of Henson in the operation of the aircraft and averring that the crash was caused by the malfunctioning of one or more of the instruments in the aircraft combined with the failure of the approach control operators at the Chattanooga Airport to properly advise Henson on his altitude during final approach procedures. The defendant also denied that the doctrine of Res ipsa loquitur was applicable and insisted that Lassetter assumed the risk and was guilty of contributory negligence in sleeping when he knew an instrument approach was to be made.

On trial the jury returned a verdict in favor of the defendant, and judgment was entered dismissing plaintiff's suit.

Plaintiff has appealed assigning six errors of the Trial Court. In his first three assignments plaintiff insists that there was no evidence to support the verdict of the jury; that the verdict of the jury was contrary to the weight and preponderance of the evidence; and that the verdict was contrary to the law as charged by the Court and the evidence. We will address these three assignments jointly.

Where, as in this case, the appeal is from a judgment based on a jury's verdict, we do not weigh evidence nor pass upon credibility of witnesses, but determine only if there is any material evidence in the record which supports the verdict. In reviewing evidence, in order to safeguard the constitutional right of trial by jury, we are required to "take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict". D. M. Rose & Co. v. Synder, 185 Tenn. 499, 206 S.W.2d 897 (1947); Kidd v. Dunn, 499 S.W.2d 898 (Tenn.Ct.App.1973).

The proof in this case shows that John C. Henson was a volunteer associate probation officer with the Juvenile Court of Hamilton County fully licensed and qualified to fly the aircraft in question under the circumstances existing at the time of the crash. On January 9, 1975, he flew three of the employees of the Hamilton County Juvenile Court from Chattanooga to Memphis to meet with other juvenile personnel. In the plane with Henson were Willie Lassetter, the plaintiff; James W. Hammonds; and Minnie Lee West. After the meeting they left Memphis at approximately 4:30 p. m. Eastern Standard Time. The crash occurred at 6:36 p. m. Eastern Standard Time as the aircraft was approaching Lovell Field in Chattanooga to land on runway 20. The site of the crash was approximately 4.5 miles from the airport at a point where the safe minimum altitude was 1,560 feet. At an altitude of approximately 850 feet the aircraft struck the tops of trees.

The plane had been flown from Memphis to Chattanooga at an altitude of approximately 7,000 feet and had descended to lower altitudes at the direction of the air control tower at Lovell Field as it approached Chattanooga. The temperature at ground level at Lovell Field was 47 degrees Farenheit and at 7,000 feet would have been approximately 25 degrees. Because of fog and darkness it was impossible to see outside of the aircraft. The situation was described by passenger Hammonds, witness for the plaintiff, as follows:

There was no way to see anything outside of the cabin. It was as if you were flying with the windows painted black. You had no sensation of anything outside the cabin, only the vibration of the plane and the sound of the engine. So, you were not aware of any surroundings.

Henson was attempting what is commonly referred to as an "instrument landing". He was in radio contact with the air control tower at Lovell Field and was relying upon the instructions from Lovell Field as well as the instruments within the aircraft. Specifically, he was relying upon the altimeter in the aircraft to determine his altitude at any given point in time. Since the air control tower was not equipped to determine the altitude of the aircraft on radar and atmospheric conditions were such as to preclude visual observation, the altimeter was Henson's sole means of determining altitude. As Henson attempted to land, both passenger Hammonds, who was seated behind Henson, and passenger West, who was seated behind Lassetter, were awake and observed that which occurred within the aircraft. Lassetter, who was seated to the right of Henson, had gone to sleep shortly after departing Memphis and did not wake up until he was in the hospital.

There is no question but that the crash occurred because the aircraft was being flown at too low an altitude. The dominant issue litigated was whether the aircraft was being so flown as a result of the negligence of Henson, as insisted by the plaintiff, or because of a malfunctioning altimeter reflecting an erroneous altitude, as insisted by the defendant.

The plaintiff in his complaint relied upon the doctrine of Res ipsa loquitur but also charged Henson with specific acts of negligence including the diverting of his attention from the operation of the aircraft and misreading and/or failing to read the instruments in the aircraft. The testimony of both passenger Hammonds and passenger West was received into evidence as a part of the plaintiff's proof, but plaintiff was unable to adduce any direct evidence of negligence on the part of Henson. One expert witness called by the plaintiff testified that in his opinion the crash occurred as a result of the negligence of Henson and not because of a malfunction of the altimeter. This evidence together with the circumstantial evidence of the crash of the aircraft while Henson was at the controls (Res ipsa loquitur ) constituted, in essence, plaintiff's case.

The defendant built her defense on the theory that the altimeter had malfunctioned misleading Henson into believing that the aircraft was at a substantially higher altitude than was actually the case. It was proven that any form of restriction in the static line which feeds the altimeter with outside static air pressure will cause it to have a significant lag in following the altitude in a descent. It was further proven that this particular aircraft was equipped with aluminum pitot tubes which are conducive to the condensation of water when the aircraft is flown from below freezing temperatures into above freezing temperatures. It was theorized that, as Henson brought the aircraft from an altitude of 7,000 feet, where the temperature was below freezing, to an altitude of less than 1,000 feet, where the temperature was above freezing, there was a condensation of water within the static line creating a restriction or partial blockage causing the altimeter to lag so that Henson, relying solely upon the altimeter, thought he was flying at a substantially higher altitude than was actually the case. This theory was advanced by three expert witnesses as being the cause of the crash rather than the negligence of...