State, to Use of Birckhead, v. Sammon

• Decision Date: 19 November 1936
• Docket Number: 16.
• Parties: STATE, TO USE OF BIRCKHEAD, v. SAMMON ET AL.
• Court: Maryland Court of Appeals

189 A. 265

171 Md. 178

STATE, TO USE OF BIRCKHEAD, v. SAMMON ET AL.

No. 16.

Court of Appeals of Maryland

November 19, 1936 ^[1]

Appeal from Court of Common Pleas of Baltimore City; George A Solter, Judge.

Action by the State of Maryland, to the use of Irma A. Birckhead against James S. Sammon, the Baltimore Air Terminals Incorporated, the Baltimore Flying Service, Incorporated, and the Hochschild, Kohn & Company, Incorporated. From a judgment in favor of the defendants, the plaintiff appeals.

Reversed and new trial awarded as to the defendants James S. Sammon and the Baltimore Flying Service, Inc.

BOND C.J., and PARKE, SLOAN, OFFUTT, and JOHNSON, JJ., dissenting in part.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

J. Rieman McIntosh and Robert Stinson, both of Baltimore (Stuart S. Janney, of Baltimore, on the brief), for appellant.

Norwood B. Orrick, of Baltimore (Venable, Baetjer & Howard, of Baltimore, on the brief), for appellee James S. Sammon.

Robert D. Bartlett, of Baltimore, for appellee Baltimore Air Terminals.

John H. Hessey, of Baltimore (Musgrave, Bowling & Hessey, of Baltimore, on the brief), for appellee Baltimore Flying Service.

Clarence A. Tucker, of Baltimore (Knapp, Tucker & Thomas, of Baltimore, on the brief), for appellee Hochschild, Kohn & Co.

URNER Judge.

As two boys were riding their bicycles, on the afternoon of April 7, 1935, across the flying field of the Curtiss-Wright Airport near Baltimore, along the course of a formerly used road, the rider in the lead was struck and killed by an airplane as it was gliding to the ground. The mother of the boy who was the victim of the tragedy brought this suit against Captain James S. Sammon, who owned and was operating the airplane, and also against Baltimore Air Terminals, Inc., the owner and lessor of the airport, Baltimore Flying Service, Inc., its lessee, and Hochschild, Kohn & Co., Inc., a corporation which had advertised and conducted a toy balloon contest at the airport on the day of the accident. The declaration alleges that the defendants were jointly negligent in failing to take proper precautions against such a misadventure as the one by which the plaintiff's son lost his life. The suit ended in a judgment of non pros as to Baltimore Air Terminals, Inc., after its separate demurrer to the declaration had been sustained and the plaintiff had not taken advantage of a leave to amend. At the trial of the issues joined on the pleas of the other defendants, a directed verdict was rendered in favor of Baltimore Flying Service, Inc., and Hochschild, Kohn & Co., when the testimony for the plaintiff was concluded, and the case was also withdrawn from the jury as to Captain Sammon when evidence in his behalf and in rebuttal had been presented. The only exceptions in the record were taken because of the instructions which exempted those three defendants from the liability charged in the declaration.

The Curtiss-Wright Airport occupies an area about 1,400 yards in length and breadth between Smith avenue on the north, Clark's lane on the south and west, and Greenspring avenue on the east. There is an entrance to the airport from Smith avenue, near which the hangars are located. Clark's lane originally extended across the ground now used for the airport, but in order that the area might be made available for that purpose, the course of the lane was diverted to the south and west. After its abandonment, however, as a public thoroughfare, that portion of the lane which intersected the land acquired for the airport was not obliterated, but at the time of the accident was an apparently usable roadway. It led from Clark's lane northwardly towards the hangars. The two boys were riding along the road in that direction and had passed over the field for more than half of its width when the accident occurred. The airplane involved in it had circled the field, and, after making a turn about a mile to the west, was gliding eastwardly to its landing. From the testimony of the plaintiff's first witness we quote as follows:

"I was at the airport at Smith Avenue on the day of the accident. * * * I was there in my car with my wife and family, about 100 feet west of the westernmost hanger on the northern edge of the field, facing south, and I saw the accident happen. My wife and I were seated in my car, and my wife called my attention to two boys who were proceeding roughly northward across this field, and I looked up and saw an airplane coming in for landing. Something told me an accident was going to be inevitable, and I stepped out of the car and just as I did the plane struck the boy. I ran out on the field, reached him I suppose within a minute after the plane struck him, and looked the boy over and saw that he was dead. * * * The boy who was killed was in the lead. * * * Subsequently I went to the field and located where the accident took place and made some measurements of distances from the place of the accident. Pacing it off I decided it was about 325 yards from the extreme western edge of the field to the point of impact where the boy was struck. It was 350 yards from the back entrance of the field to the point where the boy was struck, that is as the road runs not on a direct line. * * *

(The Court) Now what road is that? A. That is the road which crosses the airport on which the boy was traveling when he was struck. * * *

Q. Were there any automobiles on the other side of the field from where you were? A. Yes, sir. They were pretty generally scattered over the southern boundary of the field. * * *

Q. Now you speak of a well defined road. Do you mean at the end where the airport hangers are? A. No, sir, I mean the entire length of the road across the field. * * * The road does become more indistinct as it approaches the hangers. It is very well defined at the southern boundary and at the point where the boy was struck it is even gravel. * * * They were riding or proceeding slowly. * * * I saw the boy look up just a few seconds before the plane struck him and throw himself off his wheel. * * *

I went out to the field because I read a newspaper story about 'Clem Sohn, the Bat Man,' and that is what took me out there. There was a big crowd out there. I did not make any definite attempt to estimate, but I would say perhaps 3000. * * *

It is my impression that the plane carrying the man who made the jump was in the air when the boy was killed. * * *"

Descriptions of the accident by other witnesses were similar to the one already quoted, and their testimony referred to the roadway on which the plaintiff's son was killed as apparently having been "traversed frequently," and as having "tracks where machines run."

Harold Molz, eleven years of age, who was the companion of the plaintiff's twelve year old son at the time of the accident, testified:

"I was the boy who was with Harry Birkhead when he was hit by the airplane. Earlier that afternoon, after I ate my lunch, I went around to the lot where we play baseball and we had a game of baseball. Harry Birkhead was playing baseball also, and then we saw this airplane doing some sky writing, and it said something about 'Chevrolet welcomes you' or something like that, and then I said I would not mind going over there. He said, 'Well, I can go.' * * * Then we went up to the field, crossed Clark's Lane and went in the field. We got up there and looked around to see if any planes were getting ready to take off, and we didn't see none--we didn't see any getting ready to fly around, and then we got on our bikes and crossed.

Q. How did you get into the airport? A. You see there is an entrance on Clark's Lane and we went through that, right through, and didn't get off our bicycles.

Q. Rode right on through that entrance? And when you got into that entrance were there any automobiles around there? A. Yes, sir, about six or eight, and people standing around looking at the affair.

Q. Well was there any sign up there or something telling you not to enter that way? A. No, sir.

Q. Was there any police or anybody to stop you from going in there? A. No sir, nobody.

Q. Nobody said anything to you to the contrary at all? A. No, sir. We got off our bikes and we looked around and then he got on his bike and we crossed the field, and I got off mine and started to walk awhile, and the airplane came and I hollered to him and he jumped off his bike and the airplane hit him. * * *

I had known Harry Birkhead a long time. He was a year or two older than I. I used to call him 'Bricky.' * * *

When I first got into the field I got off my bicycle and looked to see if any airplanes were coming down or taking off, and Bricky did that too. * * *

(The Court) I would like to know when you had first seen that airplane. Now I don't mean when it was about to come swooping down, but had you seen it at any time before? A. No sir. I was riding my bicycle when I first saw it, and I hollered to him and then I got off my bike and kept hollering. * * *

Q. Did he answer you at all when you called to him? A. He turned his head and saw the ship, and then he jumped. I was riding behind him, about twenty-five or thirty feet. * * *

Q. When you and Bricky were riding up and came through the entrance and started across the field, did you follow any road? A. Yes sir, we followed the--like tracks, tracks like two wheels of an automobile or truck would make. We rode on our bicycles in those tracks. * * *

Q. Will you state whether or not you knew about this air circus before seeing the sky writing which said 'Chevrolet bids you welcome'? A. Yes, sir, I did. I saw about it in one of the papers."

Colonel William D. Tipton is president of the Baltimore Flying Service, Inc. H...