Northwest Airlines v. Rowe

• Decision Date: 25 October 1955
• Docket Number: No. 15334.,15334.
• Parties: NORTHWEST AIRLINES, Inc., a Corporation, Appellant, v. Ruth Wien ROWE, Administratrix of the Estate of Louis Wien, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F.2d 365 (1955)

NORTHWEST AIRLINES, Inc., a Corporation, Appellant, v. Ruth Wien ROWE, Administratrix of the Estate of Louis Wien, Appellee.

No. 15334.

United States Court of Appeals Eighth Circuit.

October 25, 1955.

Pierce Butler, III, St. Paul, Minn. (Richard J. Leonard and Doherty, Rumble & Butler, St. Paul, Minn., on the brief), for appellant.

Clifford W. Gardner, St. Paul, Minn. (Robert J. Monson, St. Paul, Minn., on the brief), for appellee.

Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an action for wrongful death arising out of the crash of the defendant's aircraft into a mountain. The parties will be designated as they were below. The plaintiff is the administratrix of the estate of Louis Wien. Jurisdiction is based upon diversity of citizenship. The defendant appeals from final judgment for plaintiff based upon the jury verdict.

The defendant operates a public commercial airline flying under published schedules over established routes. The flight here involved originated in Chicago with its destination Seattle via intermediate points. At Minneapolis a crew and equipment change was made and a Martin 202, the plane which crashed, was put into service. Louis Wien boarded the plane at Helena, Montana, as a paying passenger for Butte, Montana, on November 7, 1950. It is stipulated that the flight up to and including the take-off from Helena, Montana, was regular in all respects; that the weather within itself did not cause or contribute to the happening of the accident; that both pilot and co-pilot were experienced and qualified pilots, familiar with the plane used and the route over which it was operated; that the maintenance records of the plane revealed nothing to indicate any irregularity in company maintenance procedure or anything to suggest that the plane was not airworthy; and that the plane load and center of gravity were within permissible limits.

As required by Government regulations, a flight plan was filed which, as amended before take-off, required the plane to fly at 10,500 feet mean sea level under instrument flight rules, via Amber Airway No. 2 from Helena to Whitehall (a Government-maintained radio transmission station), and from there to Butte via Red Airway No. 2. At 8:01 a. m. the plane reported to Helena that it had reached the prescribed cruising altitude, and at 8:14 a. m. reported to Butte that it was over Whitehall at 8:11 and was starting to descend. Butte gave weather information. The plane reported it had vertical visibility at 10,500 feet. By vertical visibility is meant that the pilot can see down, but not necessarily that he can see ahead. This was the last radio contact.

The prescribed approach to Butte airport under the flight plan was that from Whitehall to Butte the plane could descend to 9,500 feet, and that after passing the Homestake Fan Marker, a signal device four miles from Butte, the pilot could descend to 8,050 feet. If the pilot was unable to see the Butte airport sufficiently for landing purposes at 8,050 feet, he was required to immediately climb to 10,500 feet and pass up Butte. The airway the pilot was authorized to use at 10,500 feet was ten miles wide, five miles on each side of the beam. However, when making the descent he was required to be on the beam which he had been directed to follow. This beam is created by radio signals that can be heard by the pilot, A signals predominating on one side of the beam, and N signals on the other. Pilots were provided with charts showing among other things the topography, location, and height of mountains, including the mountain involved in this crash. The approach procedure chart prescribed a heading of 275 degrees magnetic. Defendant's chief pilot testified as follows:

"Q. Captain, the place where this airplane came to rest on the morning of November 7, 1950, was not on the ordinary and usual course of the flight, or intended flight of that airplane, was it? A. It was not, no, sir.

"Q. * * * I say that where the wreckage was found on this date that this accident happened, the airplane was not and had not been prior to its crash on its normal planned course, — correct? A. That\'s correct."

The record would also support a finding that the defendant's plane was flying too low at the point of the crash. The plane was making an instrument flight because of limited visibility.

The parties stipulated that at approximately 8:15 the aircraft had struck the eastern slope of a ridge about 30 feet below its crest at an altitude of about 8,250 feet mean sea level, and that the wreckage indicated a heading of about 309 degrees true or 290 degrees magnetic. The site of the impact was approximately two and one-half miles east of the control tower at Butte, and about one and one-half miles to the right of the center of the on-course signal, assuming the signal was working properly, that is, the signal from Whitehall to Butte. The wreckage indicated that the plane at the time of the crash was in flight about level longitudinally and that full power was being developed. All crew members and passengers were instantly killed as a result of the crash.

The defendant contends that the radio beam was off course at the time of the crash and that this was the cause for the pilot being off course. The beams are under the control of the Government and not the defendant. The evidence bearing on this contention will be hereinafter developed.

Defendant contends that it is entitled to a reversal of the judgment upon the following grounds:

I. The verdict of the jury is against the weight of the evidence, and the evidence is insufficient to justify a verdict against defendant.

II. The trial court erred in submitting the case to the jury on the basis of res ipsa loquitur because it conclusively appears that the instrumentality which caused the injury was not under the exclusive management and control of defendant.

III. The court committed prejudicial error in admitting, over defendant's objection, the unauthorized statements of defendant's uninformed servant regarding the accident in question.

IV. The court's charge with respect to damages was prejudicial in that (a) it stated that there is no specific limit on the amount of damages that may be recovered by the plaintiff under Montana law and (b) that it unduly emphasized the possibility of liability of defendant. Such contentions will now be considered.

I. Defendant at the close of the evidence moved the court for a directed verdict upon the ground that the plaintiff had failed to prove any negligence on the part of the defendant which proximately caused the accident, and after verdict moved for judgment notwithstanding the verdict upon the same ground. Said motions were overruled.

By the stipulation hereinabove referred to, many possible causes of accident, such as turbulent weather, faulty equipment, and inept pilots, were eliminated. There is in the record substantial evidence that at the time and place of the accident the plane was approximately one and one-half miles off its prescribed course, and was flying too low over mountainous terrain at a time when visibility was impaired. It would seem that this evidence, showing that the defendant's plane was in the wrong place at the wrong time, if unexplained, together with the other evidence in the record, would be sufficient direct and circumstantial evidence to support a finding of negligence. In Gill v. Northwest Airlines, Inc., 228 Minn. 164, 36 N.W.2d 785, the court reversed a directed verdict for the defendant, and found that evidence that the defendant was flying 40 miles off the beamed airway over rocky terrain was sufficient evidence of specific negligence to go to the jury. The court states, 36 N.W.2d at page 790:

"Likewise, the jury may well have found that the pilot\'s action in leaving the airway without authorization, because of the terrain then to be encountered, constituted negligence, rendering defendant liable for the subsequent crash. * *"

In Orchard v. Northwest Airlines, Inc., 236 Minn. 42, 51 N.W.2d 645, a judgment for the plaintiff was upheld where there was evidence to support a finding that the defendant was flying too low in making an approach to the Billings airport.

The defendant's motions were also properly overruled in the event that the plaintiff has made out a submissible case under res ipsa loquitur, which proposition is hereinafter discussed.

II. In its reply brief defendant states its defense to be, (1) that the mere crash of an aircraft operated by defendant raises no inference of negligence, and (2) even if such an occurrence could give rise to an inference of negligence defendant must have a directed verdict where the instrumentalities involved were not in defendant's exclusive control and management.

The defendant contends that since the accident occurred in Montana the question of the applicability of the res ipsa loquitur doctrine to the facts in this case should be determined by the laws of Montana. The plaintiff contends that the laws of Minnesota should govern on this question. Neither side has indicated that there is any material difference between the laws of the two States upon the matters now under consideration, and in argument counsel conceded that it was not important to the determination of the issues of this case to decide whether Montana or Minnesota law applies. It would therefore seem that it is not necessary to adjudicate this question. Counsel for both sides state in their briefs that neither Montana nor Minnesota has passed squarely upon the applicability of the res ipsa loquitur doctrine to airplane accidents, and our investigation leads us to the same conclusion. Cases from other jurisdictions which have considered this question have reached conflicting results. Such cases are collected in an Annotation in 6 A.L.R.2d 528. In such Annotation at pages 530-531, it is said:

"Divergent conclusions have been

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