Levin v. Trans World Airlines, Inc.

• Decision Date: 23 January 1962
• Docket Number: Civ. A. No. 15627.
• Citation: 201 F. Supp. 791
• Parties: Pearl LEVIN, Administratrix of the Estate of Eugene B. Hoffman, Deceased, Plaintiff v. TRANS WORLD AIRLINES, INC., a corporation, and United Airlines, Inc., a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

201 F. Supp. 791

Pearl LEVIN, Administratrix of the Estate of Eugene B. Hoffman, Deceased, Plaintiff v. TRANS WORLD AIRLINES, INC., a corporation, and United Airlines, Inc., a corporation, Defendants.

Civ. A. No. 15627.

United States District Court W. D. Pennsylvania.

January 23, 1962.

McArdle, Harrington & McLaughlin, Pittsburgh, Pa., for plaintiff, Pearl Levin, Adm'x.

Dickie, McCamey, Chilcote & Robinson, Pittsburgh, Pa., for defendant, Trans World Airlines, Inc.

James J. Burns, Jr., Pittsburgh, Pa., for defendant, United Airlines, Inc.

GOURLEY, Chief Judge.

This is a retrial of a death action to recover damages arising out of an airplane accident involving aircraft of Trans World Airlines, Inc., and United Airlines, Inc., which occurred on June 30, 1956, in the vicinity of Grand Canyon National Park, Arizona. Plaintiff decedent was a paying passenger in the United airliner.

The case is governed by Arizona law.

Upon jury trial, verdict was returned in favor of the plaintiff in the amount of $112,110.00 holding both defendants jointly liable.

The matters before the Court are motions of both defendants for judgment notwithstanding the verdict and/or motions for new trial.

Defendants assign the following reasons in support of their motions for new trial:

1. Plaintiff's counsel made improper and prejudicial remarks in his closing address to the jury.

2. The trial court erred in admitting testimony of plaintiff's witnesses Stahl, Venable and Slessinger as to certain projections to establish decedent's possible future earnings and expenditures.

3. The trial court erred in refusing the following request for instructions:

"A flight off airways is not evidence of any negligence whatsoever."

"United Flight 718 was not off course."

4. The trial court made improper remarks in the presence of the jury.

MOTIONS FOR JUDGMENT NOV

The circumstances under which the mid-air collision occurred consumed numerous days of testimony based upon a maize of circumstantial evidence buttressed by expert testimony.

Plaintiff was not required to prove that either airline's conduct was the only cause of the accident. It was sufficient to establish proof that each airline committed acts or omissions which were substantial and contributing causes of the accident. Kendrick v. Piper Aircraft Corporation, 265 F.2d 485 (3rd Circuit).

Evaluating the evidence in a light most favorable to the plaintiff, the jury could have well concluded that neither plane should have been permitted to fly into this known current of adverse weather conditions; that even though the Trans World Airlines plane had a legal right to ascend to a height of 21,000 feet, a negligent act resulted from its ascending to this height when it knew that United was flying at a similar height and was its traffic; and that the respective pilots were negligent in failing to maintain a proper lookout as to the operation of their respective flights in uncontrolled air space in regard to Visual Flight Rules and Instrument Flight Rules.

The jury having found the issues in favor of the plaintiff, the Court must take that view of the evidence most favorable to him and the Court must assume that the jury found in his favor all facts which the evidence reasonably tended to prove. Meyonberg v. Pennsylvania Railroad Co., 165 F.2d 50 (3rd Circuit); Williams v. Reading Co., 175 F.2d 32 (3rd Circuit).

Courts are not free to reweigh the evidence and set aside the jury verdict because the jury could have drawn different inferences or conclusions, or because judges feel that other results are more reasonable. Masterson v. Pennsylvania Railroad Company, 182 F.2d 793 (3rd Circuit).

After viewing the evidence and all inferences reasonably to be drawn therefrom in a light most favorable to the plaintiff, it is my judgment as a matter of law that, under all the evidence, a basis exists for which the law affords relief to the plaintiff.

MOTION FOR NEW TRIAL

1. Improper Argument by Plaintiff's Counsel in His Closing Address

Defendants object to counsel arguing the value of a human life predicated upon a sum total of potential earnings over a life span as represented by the United States Mortality Tables and supported by testimony of plaintiff's witnesses as to certain projections to establish decedent's possible future earnings and expenditures. It is further contended that said argument was inflammatory and unduly prejudiced the jury.

The general rule in the Federal Courts has been that the remarks of counsel to the jury on the merits, to constitute reversible error, must be objected to at the time, be unwarranted by the pleadings and evidence, have a tendency to mislead or prejudice the jury, and be to more or less extent approved by the trial judge, Uhl v. Echols Transfer Company, 238 F.2d 760 (5th Circuit). Defendants having failed to object to plaintiff's counsel closing arguments at time of trial are precluded from raising the defense on motion for new trial, Fabrizi v. Kramer Bros. Freight Lines, 261 F.2d 594, (3rd Circuit).

But even assuming a timely objection, there is nothing to indicate that plaintiff's argument was not based upon hypothetical projections of testimony presented during trial and arguments premised on inferences deduced therefrom. Furthermore, the Court most cautiously and meticulously charged the jury concerning the remarks and arguments of counsel as not constituting evidence which were not to be given any probative weight where such argument conflicted with the evidence as presented at trial.

2. Objection to Witnesses Stahl, Venable and Slessinger

In its original Motion for a New Trial, which was filed timely, the defendant-United only objected to Mr. Stahl's testimony. Months later and after the tenday filing period provided for in Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., the defendant-United filed additional reasons for new trial. The additional reasons included an objection to witness Venable's testimony, objection to witness Slessinger's testimony as to inflation, and objection to witness Stahl's testimony in basing calculations upon the testimony of other expert witnesses.

I am satisfied that a Court may not grant a Motion for New Trial on reasons assigned after the ten-day period for filing and serving the motion has expired, Russell v. Monongahela RailRoad Company, 262 F.2d 349 (3rd Circuit).

Assuming, however, that this Court is in error in its views relative to issues raised after the expiration of the ten-day limitation in filing reasons for motion for new trial, I shall consider the merits of all issues raised both during and subsequent to the period authorized under the Federal Rules of Civil Procedure.

The Court admitted the testimony of plaintiff's witnesses Stahl, Venable and Slessinger as to certain calculations and projections to establish decedent's possible future earnings and expenditures during his life expectancy, subject to an almost limitless latitude in cross-examination by the defense and cautionary instructions by the Court, solely to aid the jury in understanding and applying the theory of accumulations which is the applicable Arizona law in evaluating damages in death actions. It was my judgment that the witnesses in question could assist the jury in understanding the complexities which the Arizona rule encompassed.

Since the jury was most thoroughly and meticulously instructed on damages as represented by Arizona law, I see no basis to conclude that the testimony of said witnesses in any way could have resulted in error.

3. Court's Refusal to Submit Specific Instructions of Defendant

The Court properly refused to charge "A flight off airways is not evidence of any negligence whatsoever" because its substance was clearly stated in the Court's charge. The Court charged:

Furthermore, there is nothing in the regulations that says it is unlawful for flights to go off airways. There is nothing that says that it is unlawful, but it is for you to say under all the facts and circumstances in this case whether what the crew of these two planes did was or was not negligence under all the facts and circumstances. (Page 358, Transcript of testimony.)

It is not error in failing to give an instruction in the precise words of the request if its substance is clearly stated. Alexander v. Kramer Brothers Freight Lines, Inc., 273 F.2d 373 (2nd Circuit). The Court charged substantially according to the defendant's request, but not in the precise words which appeared somewhat argumentative. McKee v....