United States v. Douglas Aircraft Co., 11759.

• Decision Date: 13 August 1948
• Docket Number: No. 11759.,11759.
• Citation: 169 F.2d 755
• Parties: UNITED STATES v. DOUGLAS AIRCRAFT CO., Inc. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

169 F.2d 755 (1948)

UNITED STATES v. DOUGLAS AIRCRAFT CO., Inc. et al.

No. 11759.

Circuit Court of Appeals Ninth Circuit.

August 13, 1948.

James M. Carter, U. S. Atty., Clyde C. Downing, Cameron L. Lillie and Herchel E. Champlin, Asst. U. S. Attys., all of Los Angeles, Cal., for appellant.

James V. Brewer, of Los Angeles, Cal., for appellees.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

The United States brought an action to recover the sum of $10,589.61 as damages to a government owned airplane, resulting from a collision with an airplane owned and operated by Douglas Aircraft Co., Inc., Thomas W. Scott, the pilot, being joined as defendant. The jury brought in a verdict for the defendants, judgment was entered, and the United States appeals.

On November 11, 1943, at the Los Angeles Municipal Airport, Los Angeles, California, on a diagonal runway, a collision occurred between a P-51 airplane having a 37 foot wing spread, owned and operated by the plaintiff-appellant, and a S.B.D. airplane having a 42-½-foot wing spread, owned and operated by the defendant-appellees.

The airport consists of two main runways which are 300 feet wide, with macadamized strips running the length of the field, parallel to each other but separated by a clear plot of ground. Diagonally from the four corners of the field 150 feet wide, macadamized runways bisect the main runways.

At the time of the accident, the airport was managed by employees of the City of Los Angeles. The plaintiff-appellant was a tenant of the City, as was the Civil Aeronautics Authority, an agency of the Government, whose employees operated the air traffic control tower.

On the day of the accident, A. W. Pitcairn was assigned to make a test flight for plaintiff-appellant in the P-51 airplane. According to custom and usage, the air traffic control tower was informed of the test, and as customary the plane was towed to its starting point where it took off on a test flight. The plane returned to the field and landed with permission of the control tower on the main runway, 25-L, parallel to the runway 25-R. According to practice in tests, the pilot cut the motor and coasted down the runway to the intersection of the diagonal runway, turned left and parked on the right side of the diagonal runway 22 near the edge of the runway. There is conflicting evidence whether it was parked entirely within the runway or partially off the runway. Before landing, Pitcairn, the pilot, requested the tower to send a tractor to meet him and tow the plane to the parking area. He remained parked approximately ten minutes when the Douglas S.B.D. plane, piloted by Scott, collided with his plane.

Scott was employed by Douglas Aircraft Company as a test pilot. Returning to the field from a test flight and while in the air, the signal tower gave him permission to land. He landed on runway 25-R, coasted down to the diagonal runway, and turned left into the diagonal runway 22, until he was close to the intersection of the diagonal runway and the main runway 25-L. After waiting for a plane to take off from the main runway, he taxied across the main runway with permission of the tower and entered diagonal runway 22. As he was not in a position to see ahead clearly, due to the shape of the plane, he S-ed or zigzaged the plane at 15° angles, so he could see in front of his plane. He testified that he looked down the diagonal runway, but did not remember whether he actually did look all the way down it, but knew that he could see all the way down or to the end of it. According to the record it was a clear day, but there was a haze; the hills in back of the parked plane were brown or sand color and the buildings and plane were painted a brown camouflaged army color. Also, the runway was painted several colors of paint and the grass alongside was dry and brown in color. He did not see the parked plane and ran into it.

Just after the collision, according to Scott, Pitcairn said: "I am glad you cut the switch." Scott replied: "I am sorry, I didn't see you." Pitcairn replied: "I am sorry. I had no business being here. I have been here for about ten minutes. I called for a truck and they haven't come after me yet." There was conflicting evidence as to whether it was customary for the traffic tower to notify pilots of obstructions on the field. No notice was given Scott as to the parked plane.

After the evidence was in, appellant made a motion for a directed verdict upon the ground that the defendant-appellee pilot was negligent as a matter of law in failing to see the parked plane before the collision, but the court declined to grant it, and submitted this issue to the jury.

Appellant contends that the failure of Scott in looking and not seeing what was in plain sight constituted negligence; plaintiff-appellant's acts did not constitute contributory negligence; before contributory negligence on the part of the appellant can be established, it must be shown that his purported negligence concurred or cooperated with the negligent act of the appellee; there was no evidence of an unavoidable accident present to warrant an instruction thereon; and the court erred in not granting the motion for a directed verdict or a new trial.

Defendant-appellees contend that Scott exercised due care under the circumstances, and that the collision was caused by the negligence of appellant's agents, the pilot of the parked plane, and the employees in the control tower. It is argued that the record shows that Scott did all that could be expected of him.

In Brinegar v. Green et ux., 8 Cir., 117 F.2d 316, 319, the court set forth a test often used: "The determination of the existence of negligence where the evidence is conflicting or the undisputed facts are such that fair-minded men may draw different conclusions from them is a question of fact for the jury and not one of law for the court." Measured by this test, we think the question of negligence was properly left to the jury.

Appellant argues that looking and not seeing something in plain sight constitutes negligence as a matter of law. It is not, however, clear that such a situation existed. We cannot say, as a matter of law, that...