Power Service Supply, Inc. v. E. W. Wiggins Airways, Inc.

• Decision Date: 05 February 1980
• Citation: 9 Mass.App.Ct. 122,399 N.E.2d 878
• Parties: POWER SERVICE SUPPLY, INC. et al. 1 v. E. W. WIGGINS AIRWAYS, INC.
• Court: Appeals Court of Massachusetts

Page 878

399 N.E.2d 878

9 Mass.App.Ct. 122

POWER SERVICE SUPPLY, INC. et al. ¹ v. E. W. WIGGINS AIRWAYS, INC.

Appeals Court of Massachusetts, Essex.

Argued Dec. 18, 1979.

Decided Feb. 5, 1980.

Thomas M. Kiley, Boston, for plaintiffs.

Stephen C. Fulton, Boston, for defendant.

Before BROWN, GREANEY and PERRETTA, JJ.

GREANEY, Justice.

On June 15, 1967, a Bell helicopter owned by Power Service Supply, Inc. (Power), was extensively damaged in an accident on Ponkapoag pond on the border of Canton and Milton. Power sought to recover for its property damage against E. W. Wiggins Airways, Inc. (Wiggins), on theories of negligent inspection and repair of the helicopter, res ipsa loquitur, and breach of a contract to service the aircraft. A passenger in the helicopter at the time of the crash, Edward A. Lavoie, sought damages for personal injuries on negligence theories. Certain of the claims were tried before a jury. ² At the close of the plaintiffs' evidence the judge directed a verdict for the defendant on these claims which involved negligent inspection and repair and breach of contract. We hold that the evidence warranted submission of these claims to the jury and accordingly reverse.

We first summarize the relevant evidence most favorable to the plaintiffs. Monterosso v. Gaudette, --- Mass.App. ---, ---, ^a 391 N.E.2d 948 (1979). On June 15, 1967, Lawrence Keddy, Power's president and a licensed fixed wing and helicopter pilot, engaged Lavoie to drive him to Wiggins' place of business to pick up the company helicopter. Wiggins had been working on the aircraft for approximately one month pursuant to an oral agreement with Keddy, which required the installation of certain new equipment, inspection of the entire helicopter and replacement of parts as necessary. James Hornstra, helicopter maintenance supervisor for Wiggins, advised Keddy that the work on the helicopter was finished and that it was ready to go. Keddy testified that he performed the preflight inspection required of pilots by the Federal Aviation Administration (FAA), which he described as basically visual in character, with some manipulation of the flight controls to insure that they were functioning properly. Keddy then made four or five test flights. ³ After the test flights, he had Hornstra adjust the tail rotor controls to his satisfaction and make certain other adjustments. In the course of one of the adjustments, Keddy discovered a bolt missing from the area near the carburetor, which Hornstra replaced. Keddy and Lavoie then went for a flight which remained uneventful until Keddy attempted to land on Ponkapoag pond, where he had landed on several previous occasions. He brought the helicopter down to a hover on the lake by manipulating the controls which govern the pitch of the main rotor blades and the direction of the rotor head. As he pushed the throttle down, he felt a "giant force" on his right corner which started to tip the helicopter backwards. Keddy testified without objection that he then "went across the cyclic ⁴ which should have corrected (the tipping and) nothing happened." The helicopter flipped upside down, was submerged in the pond and extensively damaged.

Upon the aircraft's retrieval some ten days later, Hornstra pointed out to Keddy that a control rod, one of the two push-pull rods that serviced the helicopter's main rotor blades and controlled the pitch of the blades and altitude of the helicopter, was disconnected. A bolt which attached this rod to the "swash plate" lever arm was also discovered to be missing. Keddy testified, and his expert later agreed, that the helicopter could not have taken off had this bolt been missing before the flight. Keddy testified, over objection, ⁵ that in his opinion the bolt came out when he cut back on the throttle upon landing. He based that opinion on his observation that the controls felt normal and functioned properly until he had almost completed the landing, with the loss of complete control occurring thereafter. He was also permitted to testify over objection that if the control mechanism to the rotor head becomes disconnected, the blades are free to tip to any pitch; that the wind will tilt disconnected rotor blades up, causing the centrifugal force from the blades to create considerable stress on the aircraft's right corner, in turn causing it to flip over; and that, in his opinion, the controls became disconnected from the rotor head prior to the helicopter's tipping upside down.

Keddy also expressed some familiarity with the different types of safety fastenings on the helicopter. At critical junctures, a castellated nut with slots through its end is placed on a bolt and held in place by a cotter pin, which is threaded through the slots and then flared at the end. It was stipulated that the missing bolt holding the disconnected push-pull rod would have been secured with a castellated nut and cotter pin in this fashion. On June 15, in the preflight inspection, Keddy observed that the bolt and nut were in place, but he did not specifically notice a cotter pin from the vantage point where he did his visual inspection. The helicopter had been approved for return to service following its periodic FAA required inspection two days before it was delivered to Wiggins, and no other mechanic or company had performed work on it between that time and the date of the accident.

Hornstra testified that, to his knowledge, an agreement existed with Wiggins to inspect the helicopter and replace parts as necessary; that, although the company kept time slips for the work performed, he could find none for time spent inspecting this helicopter; that on May 25, 1967, two bolts located in the swash plate approximately three inches from the critical bolt found missing after the accident were determined to be rusty and were replaced under the agreement; that another mechanic replaced the bolts, but that he checked to see if their cotter pins were in place; that he replaced a missing bolt pursuant to the agreement on June 15, 1967; that an agreement of this nature includes daily inspections of the entire helicopter; and that Wiggins' installation of a power boost cylinder in the aircraft (similar to power steering in an automobile) required that the entire control system be checked.

The plaintiff's expert, James Cragin, an engineer with a degree in aeronautics and the holder of FAA pilot's and mechanic's certificates, advanced the theory that the crash was caused by the bolt backing out when Keddy pulled back on the throttle, due to the absence of a properly flared cotter pin to hold the castellated nut in place. He testified that the bolt and nut are assembled only "fingertight" and that the cotter pin is needed because the fitting is subject to vibrations which can cause the nut to unscrew. He based his opinion principally on his examination of certain exhibits involving the detached push-pull rod which revealed helicle grooves caused by pieces of steel rubbing against each other "in this case . . . a threaded portion of the bolt," and the manual provided with the helicopter by Bell, which listed the specifications for the missing bolt. If the fitting was correctly aligned, the threads of the bolt in question would not be "in bearing" and no helicle grooves would have appeared. He also testified that a properly installed and flared cotter pin would have been subjected to minimal stress; that correctly installed, the nut and bolt could not have detached; that the helicopter could not have flown if the bolt was missing on take-off; and that the presence or absence of a cotter pin would be the proper subject of an inspection by a mechanic under a duty to inspect the helicopter and repair and replace parts as necessary.

1. A motion for directed verdict is properly granted only where the evidence construed most favorably to the plaintiff is insufficient to support a verdict in his favor. DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514, 306 N.E.2d 432 (1974); Alholm v. Wareham, 371 Mass. 621, 627, 358 N.E.2d 788 (1976). More specifically, the test has been stated as whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179, 181 (1972). That the inferences be reasonable requires that they be based on "probabilities rather than possibilities" and not result from "mere speculation and conjecture." Alholm v. Wareham, supra, 371 Mass. at 627, 358 N.E.2d at 792.

With regard to the negligence claims, the jury could warrantably have concluded from the evidence properly before it that a crucial bolt connecting one of the push-pull rods to the helicopter's main rotor blades, without which the aircraft could not have taken off, was in the process of working its way out during the last flight on June 15, 1967, and that the bolt detached at the moment that Keddy backed off the throttle. The evidence also made it more probable than not that the nut holding the bolt had unscrewed sometime after Keddy's inspection, because the nut was not securely fastened by a properly installed cotter pin. Compare Maher v. General Motors Corp., 370 Mass. 231, 234, 346 N.E.2d 833 (1976); Kennedy v. U-Haul Co., 360 Mass. 71, 74, 271 N.E.2d 346 (1971) (as to U-Haul). There was sufficient evidence to permit the jury to draw one of two permissible inferences with regard to the cotter pin: (a) either that it was missing entirely at the commencement of the flight, or (b) that its ends were not appropriately flared so that it worked its way out during the flight. "There is no requirement of law that the plaintiff point out the exact way an accident happens. The plaintiff sustained (its) burden if (it) proved that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was...