Peavey v. City of Miami

• Decision Date: 15 April 1941
• Citation: 1 So.2d 614,146 Fla. 629
• Parties: PEAVEY v. CITY OF MIAMI. MAGIC CITY AIRWAYS, Inc., v. SAME.
• Court: Florida Supreme Court

1 So.2d 614

146 Fla. 629

PEAVEY v. CITY OF MIAMI.

MAGIC CITY AIRWAYS, Inc., v. SAME.

Florida Supreme Court

April 15, 1941

L J. Cushman anc Carson, Petteway & Stembler, all of Miami for plaintiffs in error.

Lewis Twyman and Wm. W. Charles, both of Miami, for defendant in error.

BROWN, Chief Justice.

The declarations filed by the respective plaintiffs in these companion cases both charged the defendant, the City of Miami, with the same negligence, in substance that of carelessly maintaining and operating a municipal airport and that as a proximate result thereof the plaintiff Peavey sustained serious and permanent injuries and the airplane owned by the plaintiff Magic City Airways, Inc., was destroyed. The defendant city interposed pleas of the general issue and contributory negligence.

The plaintiff Peavey, one of the plaintiffs in error, who had had some years experience in the flying of airplanes, was operations manager and pilot for the Magic City Airways Inc., and about the week prior to May 1, 1936, went to New York where a second-hand Fairchild six-passenger cabin plane was purchased for the corporation, the other plaintiff in error.

The Miami Municipal Airport at this time had two runways, each about 4,000 feet in length and 200 feet in width, one running from northwest to southeast and other running from northeast to southwest and each crossing about the center of the field. Outside the runways, the field was of firm sandy soil covered with grass suitable for landing purposes. The Works Progress Administration, under the sponsorship of the City of Miami, had undertaken to rebuild and enlarge these runways, and in making these improvements employed a road-roller, tractor, grader and several dump trucks. During the pendency of this work, the field was kept open for planes to land upon, but that part under construction was marked off with flags in the daytime and red lanterns at night in accordance with the regulations promulgated by the Civil Aeronautics Authority and adopted by the City of Miami to govern the operation of the airport; furthermore, in conformity with these rules, this information was inserted in a weekly bulletin maintained by the Bureau of Air Commerce (for the purpose of giving such information to airmen) in the following form:

'Notice to Airmen No. 2-10, Dated April 16, 1936.

'(m-1) Miami, Florida: Manager Municipal Airport advises NW-SE runway closed for reconstruction. Do not attempt to use. Danger area marked by staggering red flags in day time and red lanterns at night. Men working on field night and day. Flood lights not operating. Use caution when landing in grassed areas. See Second District Notice No. 2-9.'

On April 30, 1936, the plaintiff Peavey, accompanied by another pilot, left New York in the plane purchased by the corporation. They stopped first in Washington, then went to Wilmington where they spent the night, and proceeded on to Jacksonville the next day. Peavey did not have a license to fly at this time, having allowed his to lapse in 1934 for failure to put in the required flying hours, but he had secured a student's permit in order to make this flight. He said regulations prohibited him from taking off and landing the plane while the other pilot was an occupant, however; so the latter handled the controls until they reached Jacksonville at approximately 3 o'clock on the afternoon of May 1st.

Peavey estimated he stayed at the Jacksonville airport about an hour before going on to Miami alone, and while there inquired of some airmen who had just flown in from Miami as to the condition of the latter field. They told him that the field was all right, but that the northwest-southeast runway was under repair and to keep off it. Plaintiff reported they stated that the center of the field, where the runways converge, was all right, and told him where to land. In addition, Peavey said he was already fairly well familiar with the conditions at the Miami airport, having been on the field just the week before. He did not read any official notice, however, nor did he request any information coming in over the radio from Miami as of that day, which could have been obtained free from the Federal Radio Station at the municipal airport in Jacksonville, giving full details as to the then existing conditions at Miami. He said that while talking to the weatherman at Jacksonville he looked at the bulletin board but did not remember seeing the Miami notice posted thereon, although he would not say it was not there. He testified that he also made inquiry of the airport manager at Jacksonville as to the condition of the Miami field, and was told in return that the northwest-sougheast runway was under construction and 'they said to keep off of that,' which was the runway on which he later collided with the roadroller.

Although the time of the plaintiff's arrival in Miami was established to be between 6:45 and 7:15 p. m. of May 1st, he himself reporting it to have been 7:12, there is much conflicting evidence as to the degree of light then existing. Some witnesses stated it was dark and dusky; others stated it was a clear day and that there was sufficient light to perceive objects a thousand or more feet away. The government meteorologist in charge of the Airway Station testified that sundown occurred at 6:52 p. m. on that day, that visibility was 15 miles or better, and that the twilight, with an illumination 20 times as great as the full moon at its zenith, continued for 24 minutes after sundown.

In improving the airport, the WPA employed three shifts, each working six hours; and at this time of day the second crew were leaving the field in order that the night shift could begin work. The operators of the road-roller and other equipment were moving to a point on the northwest-southeast runway so they could bring the machinery in for the night. There were no flood lights on the field, as the 'Notice to Airmen' had stated, but red lanterns were staggered along the sides of that runway for its entire length, and there was a large red flag hoisted above the road-roller itself.

It was under these circumstances that the plaintiff Peavey approached the airport, circling from a point about 2,000 feet east of the field northward around the northeast corner probably 500 to 1,000 feet therefrom. He then skirted around west and southwest of the field and came in from the southwest going northeastward, parallel with the soughwest-northeast runway (which was not under construction) to make his landing. In making his partial circle, he testified that he 'wasn't over the field' at any time; and further, it appears from his statements that he did not fly closer to the airport than 500 to 1,000 feet. He said he could not see any lights and that it was so dark the ground looked black to him; but, despite this, he did not turn on his landing lights though he said he knew there was a regulation requiring lights to be on after sundown.

According to plaintiff's testimony, he came in over the southwest corner of the field to land, going in a general northeasterly direction with about 25 feet altitude, planning to land, not near the center of the field, but as near the south boundary as possible; that is, he intended to descend near the 'early' or 'leeward' side of the field, which is the general rule, and up the side so that he would not cross any runways, and stated he was in a position to do this. He said he could tell his altitude by sighting the road and red lights as he came in, though he could not see the ground ahead because the plane's motor blocked his vision for about a 90 degree sector. However, as he glided in, in a straight line approach from a thousand feet away, he stated that he did not see any lights in the center of the field, and therefore supposed he was to roll through this space; so he changed his plan and decided to land nearer the center, which was later established to be about 100 to 150 feet from the runway under repair.

Other witnesses, who observed the landing, testified the pilot came in at a higher altitude, their estimates varying from 150 to 300 feet, and overshot his mark. In any event, the plaintiff landed near the center of the field, parallel with the northeast-southwest runway, rolled upon the runway under construction (going over a red light), and collided with the moving road-roller, which had no lights on it. The plaintiff testified that he did not see the machine at all, explaining that it was too dark to be seen from the air even had he flown over the field (although he said he could see the runways as he turned north in making his circle), and that the airplane motor blocked his view directly ahead when he was on the ground. He said he could stop his plane within 500 feet of the point where it touched the ground, and within a shorter space if he applied the brakes but that he did not consider it necessary upon this occasion.

Plaintiffs contend the evidence shows the city was guilty of negligence in not sending out proper warnings (because the 'Notice to Airmen' failed to mention the use of machinery in the work); in not having flood lights on the field; in not having the road-roller lighted; and in not having sufficient warning lanterns in the dangerous places on the field. The defendant insists that the city's negligence has not been established, and further, that the evidence given by the plaintiff himself shows he was contributorily negligent. The jury's verdict was in favor of the defendant in each case to which the plaintiffs below have brought this writ of error, complaining chiefly that the trial court did not correctly instruct the jury upon the issues and evidence to their harm and prejudice.

The first question presented for our...