Plewes v. Lancaster

• Decision Date: 17 July 1952
• Citation: 90 A.2d 279,171 Pa.Super. 312
• Parties: PLEWES v. CITY OF LANCASTER et al.
• Court: Pennsylvania Superior Court

90 A.2d 279

171 Pa.Super. 312

PLEWES v. CITY OF LANCASTER et al.

Superior Court of Pennsylvania

July 17, 1952

Argued March 20, 1952.

Appeal, No. 40, October T., 1951, from judgment of Court of Common Pleas of Lancaster County, August T., 1949, No. 9, in case of Kenneth C. Plewes v. City of Lancaster and George H Ritnour.

Trespass for property damage. Before Wissler, J.

Compulsory nonsuit entered. Plaintiff appealed.

John W. Beyer, with him Arnold, Bricker & Beyer, for appellant.

Paul A. Mueller, with him Bernard M. Zimmerman, City Solicitor, for appellees.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ. Hirt and Gunther, JJ., dissent.

OPINION

DITHRICH J.

From the discharge of a rule to show cause why judgment of compulsory nonsuit in this action of trespass should not be stricken off plaintiff brought this appeal. The facts, viewed in the light most favorable to appellant and giving him the benefit of all proper inferences to which he is entitled (Garvin v. Pittsburgh, 161 Pa.Super. 140, 53 A.2d 906), are substantially as follows. On October 19, 1947, he was the owner of a one-half interest in a Culver V airplane, a two-passenger low wing monoplane with a tricycle landing gear weighing approximately 1600 pounds. Appellant had been the holder of a private pilot's license since 1943 and was granted a commercial pilot's license on October 9, 1947, ten days before the happening of the accident which is the basis of this suit. He had approximately 340 hours flying experience as a pilot and approximately 700 hours as a flight engineer on a United States Army bomber during World War II. At the time of the accident he was employed as an aeronautical engineer at Wright Field, Dayton, Ohio.

On October 19, 1947, he was flying alone on a return trip from Philadelphia to Dayton and between 7 and 7:30 p.m. approached the Lancaster Airport where he planned to land his plane for the night. It was dark when he reached Lancaster. Before leaving Philadelphia he noted from Airman's Guide, a United States Chamber of Commerce publication, that the Lancaster Airport was listed L-4 under "Lights", which indicated "Beacon, boundary, obstruction, and flood" lights. (Emphasis added.) He, however, had not seen a supplement to the guide dated September 30, 1947, and did not think one was available at the time at the Philadelphia Airport. In the supplement under "Domestic Data" there appeared the following: "LANCASTER -- LANCASTER ARPT: Drain-pipe on both sides NW/SE strip, mrkd-stay between red flags. Sinkhole extreme E end E/W strip -- 2 holes S end N/S strip, mrkd. (3-12)." Whether or not he saw the supplement is not material since, as stated by the lower court, "the uncontradicted evidence is that the two holes indicated as marked in the Guide were not lighted to show the rock pile which the plane of plaintiff struck. The entire area of the airport as it then existed was lighted."

As appellant approached the airport it was lighted with white boundary lights placed at regular intervals around the boundary of the entire field and forming a closed loop. There were no lights on the field designating the boundaries of the runways or landing strips, but within the series of boundary lights, at a point that would be reached if the runway had been projected to the boundary, was a green light and at the opposite side of the loop, had the other end of the runway been projected to the opposite boundary, was a corresponding green light. Other systems of two and three green lights designated the presence of two other runways or landing strips, so that a pilot approaching the field could line up either one, two or three lights on one side of the boundary with a corresponding number of lights on the opposite boundary and know that somewhere between the two, in a straight line, there would be a runway or landing strip.

Appellant made the normal approach for landing, circling the field in three 90-degree turns; but, in watching the field and other aircraft in the "pattern", on the turn into the final approach he was unable to orient himself with the green lights which designated the runways or landing strips, but saw there was sufficient landing space on the turf to set his light craft down without any difficulty. He landed at a normal speed of about 50 m.p.h., "rolled", from the impetus of his flight, and taxied for about 400 feet, when, while proceeding at a speed of approximately 30 m.p.h., the plane struck a rock pile 5 feet in diameter and projecting 18 inches above the ground. The rock pile was not lighted nor was there anything to indicate its presence on the field.

The learned court below said: "These facts, it seems to the court, bring the plaintiff by analogy within the well established principle of law, namely, that where a person, having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover: . . ." The cases relied upon by the learned judge of the court below are clearly and readily distinguishable on the facts. Had appellant's plane skidded and upset as a result of landing off the macadam runway, or if there had been any danger of such a mishap, we would agree that the principle of Levitt v. B/G Sandwich Shops, Inc., 294 Pa. 291, 144 A. 71, would apply; but the only need of a hard-surfaced runway for light aircraft is to provide a safe and convenient landing area in times of inclement weather.

In Peavey v. City of Miami, 146 Fla. 629, 1 So.2d 614, where a pilot collided with an unlighted steam roller on a runway, the Court said (p. 632): "Outside the runways, the field was of firm sandy soil covered with grass, suitable for landing purposes" (emphasis added), the inference being that it would not only have been proper but desirable for the operator of the airplane to have landed there. The place selected at Lancaster was sufficiently large and adequate in every respect for safe landing had it not been for the unlighted rock pile. In Magennis v. Pittsburgh, 352 Pa. 147, 42 A.2d 449, plaintiffs were held to be guilty of contributory negligence as a matter of law for unnecessarily walking in the cartway of a street where a sidewalk was available. And in Barth v. Klinck, 360 Pa. 616, 62 A.2d 841, the wife-plaintiff was held to be negligent in stepping over a barricade, three feet in height, at either end of which was placed a red light for the purpose of protecting pedestrians and warning them of the dangerous condition.

The applicable principle is clearly and admirably stated in Garvin v. Pittsburgh, supra, 161 Pa.Super. 140, 53 A.2d 906, where, in reversing judgment entered n.o.v. on the ground of contributory negligence of plaintiff because he had chosen a dangerous way when he could have taken a safe one, we said (pp. 143, 144) in an opinion by Rhodes, P. J.: "We are of the opinion that plaintiff cannot be held contributorily negligent as a matter of law on the ground that he chose a dangerous route when a safe route was available. . . . Neither route was absolutely safe, but the danger inherent in the route plaintiff took was not so predominant that his choice could be held to constitute contributory negligence as a matter of law." (Emphasis added.) See also Graham v. Reynoldsville Borough, 132 Pa.Super. 296, 200 A. 681.

In the operation and control of an airplane it is the pilot's duty to exercise ordinary care. He is not held to the highest degree of care that men of reasonable vigilance or foresight ordinarily exercise in the operation of a plane in making a landing on a runway in an airport, but he is bound only to use ordinary care. Murphy v. Neely, 319 Pa. 437, 179 A. 439; Davies v. Oshkosh Airport, Inc., 214 Wis 236, 252 N.W. 602; Greunke v. North American Airways Co., 201 Wis. 565, 230 N.W. 618; Grain Dealers Nat. Mut. Fire Ins. Co. v. Harrison, 190 F.2d 726; Long v. Clinton Aviation Co., 180 F.2d 665. Appellant had a right to assume that the rock pile would be lighted at night, as indicated in the Airman's Guide, and he was not bound to anticipate that such an obstruction would be permitted on the field without any warning whatsoever of its presence. "The failure to...