Long v. United States, Civ. A. No. 4535.

• Citation: 241 F. Supp. 286
• Decision Date: 14 May 1965
• Docket Number: Civ. A. No. 4535.
• Court: U.S. District Court — District of South Carolina
• Parties: Olin S. LONG, Plaintiff, v. The UNITED STATES of America, Defendant.

241 F. Supp. 286

Olin S. LONG, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. A. No. 4535.

United States District Court W. D. South Carolina, Greenwood Division.

May 14, 1965.

Thomas H. Pope and Robert D. Schumpert, Newberry, S. C., for plaintiff.

John C. Williams, U. S. Atty., Geddes H. Martin, Asst. U. S. Atty., Greenville, S. C., for defendant.

WYCHE, District Judge.

This is an action for personal injuries under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq. The plaintiff alleges that his injuries were the direct and proximate result of the negligent and reckless operation of a helicopter owned by the defendant and operated by a member of the Armed Forces acting in the line of duty and within the course and scope of his employment.

Defendant sets up three defenses in its answer: (1) a general denial; (2) that it was operating over plaintiff's lands with the express permission of plaintiff in accordance with a certain permit signed by the plaintiff on April 29, 1963; and (3) contributory negligence on the part of plaintiff.

At the conclusion of plaintiff's case, I granted plaintiff's motion to amend the complaint to include an allegation that defendant violated the provisions of the Uniform State Law for Aeronautics, Section 2-1 et seq., Code of Laws of South Carolina 1962, without contributory negligence on the part of plaintiff. Counsel for the defendant was given the opportunity to serve an amended answer within ten days, but counsel agreed that no further amended answer was needed, the first amended answer being deemed a general denial of the allegations relative to the violation of the Uniform State Law for Aeronautics.

In compliance with Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon in the above cause as follows:

FINDINGS OF FACT

On the morning of August 7, 1963, plaintiff was mowing his pasture near Camping Creek, in the County of Newberry, with a mowing machine towed by a team of two mules. Plaintiff stopped his team to cool off in the shade of a pine tree approximately forty-five feet tall, located at a point approximately twenty-eight yards from Camping Creek, thirty yards from paved Highway S-36-202, and eighty-five yards from the top of a steep hill running generally parallel with Camping Creek. The pasture in which plaintiff was mowing briers and bushes contained approximately eight to ten acres, and at the time in question there were cattle in the pasture.

At about 11:15 a. m., plaintiff was oiling the blade of his mowing machine while kneeling behind the blade at the far right side of the mowing machine. He had draped the reins across a lever which was also located on the right side of the mowing machine and to the left of the mowing blade.

Plaintiff heard a severe penetrating noise which grew louder as it approached nearer to him, and he immediately glanced back at a point above some trees located to the north of Highway S-36-202 at a point some eighty yards from him, where he saw a United States Army helicopter flying directly toward him at tree-top level. He grabbed the reins of his team and attempted to keep the mules from bolting. The helicopter continued to fly toward the plaintiff and passed over his head at a height of some thirty-five to forty feet, at which time the mules lurched forward, pulling plaintiff's right leg over and in front of the horizontal mowing blade which was poised just a few inches above the ground.

Plaintiff's right leg was almost amputated by the mowing blade and plaintiff left his team and went toward the highway for assistance. A neighbor took him to the hospital where he was treated by Dr. Ralph P. Baker, Surgeon, of Newberry, and where he remained for ten days.

The helicopter was observed by neighbors flying in the vicinity of Camping Creek and Highway S-36-202 just above the trees and was identified as a United States Army vehicle.

The mowing machine the plaintiff was using was an old one, having been purchased second-hand many years ago by him. The mowing blade projected to the right of the mower and could be lifted to a near vertical position by a lever located on the left of the mowing machine. The lever on the right of the machine, over which the reins were draped, regulated the pitch of the mowing blade. A foot lever to the left of the driver's seat engaged the gear which operated the mowing blade; when this foot lever was depressed by foot, it disengaged the blade. When the mules bolted, the sudden jolt engaged the gear.

The defendant admits that it owned the helicopter being operated near Camping Creek on August 7, 1963. The helicopter was operated over plaintiff's pasture and over his head.

The wounds received by plaintiff were extremely dirty and contained grass and dirt; the bone of the right leg was chipped from the action of the mowing blade; the Achilles tendon was severed as were all of the other arteries, veins and nerves in the right ankle except one vein. Plaintiff has suffered an 85 per cent. functional disability of his right leg. The blood supply was embarrassed, the plantar surface of his right foot has lost all sensory feeling, and he has no "push-off". Plaintiff is unable to elevate and depress his toes or to walk naturally, his skin is sensitive and it is subject to irritation and blistering with probable subsequent ulceration.

Plaintiff was sixty-five years of age at the time of his injury and since his graduation from Newberry College in 1922, has taught school and operated a farm of 198 acres in Newberry County, owned by him and the other heirs of his deceased father. He has also looked after the farm owned by his wife in Calhoun County. He is now unable to do farm work. He had a life expectancy of 13.51 years.

Upon his release from the Newberry County Memorial Hospital on August 17, 1963, plaintiff was first confined to a wheel chair for some weeks and thereafter used crutches. Since Christmas, 1963, it has been necessary for him to use a walking cane.

The pasture in which plaintiff was injured is located in a rather thickly-settled community of small farms. Plaintiff and many of his neighbors still use horses and mules to till the soil rather than mechanized equipment. In addition, his nearest neighbor, and others in the community, operate dairies and keep cattle on their farms. M...