Wilson v. Colonial Air Transp., Inc.

• Decision Date: 14 March 1932
• Citation: 278 Mass. 420,180 N.E. 212
• Parties: WILSON v. COLONIAL AIR TRANSPORT, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 420

180 N.E. 212

WILSON

v.COLONIAL AIR TRANSPORT, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1932.

Appeal from Municipal Court of Boston, Appellate Division; Adlow, Judge.

Action by Walter Wilson against the Colonial Air Transport, Inc. The trial court found for defendant, and, from a decision of the Appellate Division of the Municipal Court of the City of Boston dismissing the report, plaintiff appeals.

Affirmed.J. D. Graham, of Boston (G. B. Rittenberg, of Boston, of counsel), for plaintiff.

J. J. Mulcahy and M. K. Campbell, both of Boston, for defendant.

PIERCE, J.

This is an action of tort to recover the value of clothing and personal effects worn by, and on the person of, the plaintiff at the time of the accident hereinafter described. The case comes before this court on appeal by the plaintiff from the decision of the appellate division of the municipal court of the city of Boston dismissing the report.

The plaintiff testified that he was a passenger for hire in a tri-motored plane, one of the airships of the defendant, on June 5, 1929; which was scheduled to leave the Boston airport at 1:30 p. m.; that prior to embarking on the airplane he had purchased a ticket to which his signature was affixed and which contained the following terms: ‘1. That the Company is a private carrier. 2. That this passage reservation is personal and individual and is not transferable. 3. That the Company reserves the right to cancel the carriage privilege represented by this reservation in its absolute discretion, subject only to the return to the holder of the deposit or payment made on account of the same. 6. That the holder voluntarily assumes the ordinary risks of air transportation, and stipulates that the Company shall not be responsible save for its own neglect of duty. 7. The holder hereof has read and accepted the foregoing conditions of passage’; that he had been a passenger on this line from Boston to New York several times previous to this. He further testified that after he had entered the plane and while it taxied on the ground to the point where it was to take off, the right wing motor backfired and emitted clouds of smoke; that when the pilot ‘revved’ the motor it was apparent to him (the witness) that the right wing motor did not revolve at the same speed as the others; that a few seconds after leaving the ground the right wing motor went dead, and the right side of the plane tipped; that he observed the pilot making frantic efforts to right the plane; that the pilot steered the plane toward the water, immediately it made a nose dive into the water, and the plaintiff lost the property for which he now sues. The plaintiff also testified as to the value of the personal property that was damaged in this accident.

The defendant offered and the trial judge received the testimony of the pilot and that of a bystander who had a pilot's license. The bystander testified that when the plane took off it went up normally, although in a few seconds it made the dip referred to in the plaintiff's testimony. The pilot testified to his handling of the machine, and further, that he had piloted the same machine on a previous trip that day from New York to Boston, and on arriving at Boston turned it over to inspectors and received it back a few moments before he took off. He did not testify that it was inspected; but did testify that he turned it over to the inspectors as was his custom and that it was the custom of the inspectors to inspect. The inspectors did not testify. The pilot further testified that his right motor went dead a few second after leaving the ground, at an altitude of ten feet; that the reason one motor was ‘revving’ at fewer revolutions per minute than the other motors while the plane was on the ground was because the plane was being steered in that manner by him; that on leaving the ground both motors were ‘revving’ at the same rate; that he ‘revved’ the motor fifty seconds before taking off, and that in thirty seconds he could ascertain whether anything was wrong; that he first tested the right wing engine, next the center engine, and last the left wing engine, trying each engine on each magneto and found each engine and each magneto were in good running order and that they were in good running order at the time of the takeoff. ‘This was all the material evidence relating to liability.’

‘At the close of the trial the plaintiff duly made the following requests: 1. That the testimony of Walter Wilson as to how the accident occurred constituted a case to which the doctrine res ipsa loquitur applies. 2. Upon the plaintiff having proved a case to which the doctrine res ipsa loquitur applied, the burden of proof then rested upon the defendant to rebut the legal inference of negligence. 3. The evidence produced by the defendants in no way explained how the accident occurred. 5. That the plaintiff has established a res ipsa loquitur case, and the defendant must explain the cause of the accident in order to rebut the presumption of negligence. 6. The evidence of the defendants went no further than to explain the conduct of the pilot. 7. That the doctrine of res ipsa loquitur applies to the facts of this case.’ The judge denied these requests but allowed the following: ‘4. The evidence of the defendants did not explain why one of the motors failed to function within a few seconds after leaving the ground.’

The judge found the following facts: ‘I find that the defendant was not negligent in the management or operation of airship...