Shattuck v. Mullen
| Decision Date | 30 October 1959 |
| Docket Number | No. 1164,1164 |
| Citation | 115 So.2d 597 |
| Parties | Marjorie K. SHATTUCK and J. A. Chesson, Jr., d/b/a Prince Aviation Company, Appellants, v. Robert W. MULLEN, Appellee. |
| Court | Florida District Court of Appeals |
Charles F. Clark, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
Peyton T. Jordan, Jr., Jordan & Jordan, Tampa, for appellee.
The appellee, who was the plaintiff in the lower court, filed an action ultimately alleging in his amended complaint that while plaintiff was landing his aircraft at Peter O. Knight Airport in Tampa an aircraft owned by defendants collided with plaintiff's aircraft. The amended complaint also alleged that defendant's aircraft was operated by one H. H. Bell who was being instructed by defendant Marjorie Shattuck, the person in command of the aircraft. Negligence was alleged against both occupants of defendant's aircraft, and that because of this collision plaintiff sustained permanent injuries. The defendants filed a counterclaim which was apparently abandoned, and then answered denying any negligence and alleged contributory negligence of the plaintiff as a defense.
Trial was had which resulted in a jury verdict and judgment thereon in favor of plaintiff in the amount of $32,500.
The collision occurred at Peter O. Knight Airport in Tampa on December 9, 1956, at 11:15 A.M. This airport does not have a control tower but is operated according to Civil Aeronautic Rules, and, where not in conflict, according to Rules of the Hillsborough County Aviation Authority.
The plaintiff, who was flying for the third time solo, was operating an Aeronca aircraft; and defendant's plane, a Cessna, was occupied by Mrs. Marjorie K. Shattuck, and a student pilot, H. H. Bell.
The defendant aircraft was in the process of a touch and go landing, having approached the airport in the traffic pattern for runway no. 3, a 4,000 foot runway extending from southwest to northeast at 37 degrees. The final approach was made from southwest toward the northeast.
The plaintiff flew the traffic pattern for runway no. 10, a 2,000 foot runway which runs east-west, 109 degrees from true north. His final approach was from west to east.
The flight procedure at this airfield briefly stated is as follows:
In pursuing a traffic pattern approach to the airport, the pilot enters the pattern on what is referred to as the 'down wind leg' which is parallel and 2,000 feet to the right of the runway upon which he expects to land. The planes in this case were at an altitude of 600-800 feet at this point. Upon entering the down wind leg, the pilot continues in a straight course parallel to the runway to a point 1,000 feet beyond the end of the runway. At that point he will have descended to an altitude of not less than 400 feet; and he than makes a 90 degree turn to the left, called 'the base leg,' traveling the 2,000 feet to a point approximating the end of the runway he is approaching, and descending all the while to a minimum altitude of 200 feet. At the end of the base leg, he makes another 90 degree turn to the left and begins his final approach to the runway which should be approximately 1,000 feet dead ahead.
The defendant was making a touch and go landing at the time of the accident. In a touch and go landing, the pilot of the aircraft brings it down onto the runway in the above described manner, rolls along the runway without coming to a stop, and then proceeds into the air again. In the instant case, the defendant aircraft landed on runway no. 3 in a northeasterly direction. The defendant aircraft touched down on runway no. 3 at a point in the first third of the runway, rolled for a distance of 50-75 feet at 35-40 miles per hour and, upon reapplying power, became airborne again, proceeding to a point at which Mrs. Shattuck observed the aircraft operated by the plaintiff coming from her left and approximately 100 feet away. At that point, both aircraft were 25-50 feet above the ground. Mrs. Shattuck immediately took control of the plane and made a hard right turn to avoid a collision. She felt an impact against the plane but was able to land her plane in a normal manner.
The plaintiff was landing headed east on runway no. 10. Plaintiff testified that after flying over some tress he saw an aircraft near the end of runway no. 3, which was being used by defendant. Plaintiff proceeded on toward and above his runway no. 10 to the intersection with runway no. 3, when he saw an aircraft 'just to my right.' He was unable to estimate the distance of this other aircraft or state whether it was above or below him. After the collision, plaintiff's aircraft nosed over and crashed, injuring plaintiff severely.
During the trial both parties maintained that the other should have seen the approaching aircraft and thereby avoided the accident. The trial court, over objections by defendant, instructed the jury on the last clear chance doctrine in that defendant should have seen the plaintiff in his 'perilous position' and thus should have avoided the accident.
The Supreme Court of Florida in Peavy v. City of Miami, 146 Fla. 629, 1 So.2d 614, 618, declared the Florida law to be that the degree of care to be exercised by an aviator in the operation of his aircraft is as follows:
'* * * Looking to the general law, we find the authorities are unanimous in the following view:
"In the absence of statutes covering the operation and management of airplanes at the time and place of an accident, specifically applicable to the issue of negligence in the operation thereof, the rules of law applicable to torts--the ordinary rules of negligence and due care--obtain. Thus, the rule of the common law that every person shall use ordinary care not to injure another, that is, such care as the great mass of mankind would use under the same or similar circumstances or such care as the ordinarily prudent person would use under the same or similar circumstances, applies. An aviator is under no duty to use the highest degree of care that men of reasonable diligence or foresight ordinarily exercise in the operation of airplanes, but is bound only to use ordinary case, although here, as in any other case, ordinary care differs under the circumstances. The care must be commensurate with dangerous consequences to by reasonably apprehended; it may be a very high degree under some circumstances and of a slight degree under others.' 6 Am.Jur. 16, Aviation, Sec. 23.
'See, also, Parker v. James Granger, Inc., 4 Cal.2d 668, 52 P.2d 226; 6 Am.Jur. 19, Aviation, Sec. 28; 2 C.J.S. Aerial Navigation § 19, p. 907, and cases cited therein.'
In the case of Grain Dealers Nat. Mut. Fire Ins. Co. v. Harrison, 1951, 190 F.2d 726, 729, the Court of Appeals, Fifth Circuit, after reviewing the legal principles of the Florida cases pertaining to the dangerous instrumentality doctrine as applied to automobiles stated:
This court accordingly will discuss the applicability of the last clear doctrine to the instant case involving an aircraft collision in the same manner as this doctrine has traditionally been applied to automobile cases in Florida.
The decisive question presented to this court is whether or not the trial court erred in the circumstances we have related in charging the jury on the doctrine of last clear chance.
Numerous cases and articles have been written discussing the doctrine since its origin in the celebrated case of Davies v. Mann, (1842) 10 Mees. & W. 548, 152 Eng. Reprint 588, 19 Eng.Rul.Cas. 190. No attempt will be made to make an exhaustive survey of the cases in which this doctrine has been applied. Factual situations involving almost every dangerous area of human activity have been subjected to instructions on or applications of last clear chance principles. For illustrations of some of these varied situations see Annotation 92 A.L.R. 47; Annotation 119 A.L.R. 1041; Annotation 171 A.L.R. 365; and injuries on miniature railway, injuries by motorboat, injuries on roller coaster, injuries on scenic railway, 66 A.L.R.2d 707.
The only case our research has produced in which the doctrine was applied involving a collision between flying aircraft is Ebrite v. Crawford, Cal.App., 5 P.2d 686, affirmed 215 Cal. 724, 12 P.2d 937. In the Ebrite case the District Court of Appeal held that the trial court erred in giving the instruction on last clear chance on the ground that failure to discover the dangerous situation of the plaintiff cannot be substituted for actual knowledge. We note however, that this state does not follow that theory of the doctrine for in Wawner v. Sellic Stone Studio, Fla.1954, 74 So.2d 574, 579, the Supreme Court stated:
The classic example of the doctrine of ...
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