Brief in Oppositionto Petition for Writ — Central Louisiana Electric Co. v. Moses

aos Ottye-Supreme Court, Us

CARY | Flick D

U.S ° FEB 20 1964

IN THE é

>

_ SUPREME COURT OF THE UNITED STATES

ef ene Bont

-—+-™M40..

October "Verma. 1968 «--—

“99 :

CENTRAL LOUISIANA ELECTRIC COMPANY.

INC., ET AL..

ra 7 . Petitioner.

versus

MRS. SARAH LOU P. MOSES. ETC.. ET AL..

Respondents.

- |

j 4

a

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

. H. ALVA BRUMFIELD,

SvLVIA ROBERTS © |

205 American Bank Building.

Baton Rouge, Louisiana;

HERSERT O'NIELL,

Thibodaux, Louisiana,

Attorneys for Respondents

eal

TS

Franklin Press, Inc. «fijpe Baton Rouge, La

II.

" VERSED THE JURY'S FINDING THAT CLECO’S *

NEGLIGENCE WAS NOT THE PROXIMATE

i

TABLE OF CONTENTS -

fest Weight of Evidence

B. _ Instructions Reiating to the Issue of Newton's

Contributory Negligence Were Erroneous, Mis-

leading and Should Not Have Been Given

4

C. The Trial Court Erred in Refusing to Give Re-

spondents’ Charges on Sudden Emergency

THE COURT OF APPEALS CORRECTLY RF-

CAUSE OF THE ACCIDENT SINCE SUCH FIND-

Page

Counter Statement of Question Presented Aa

Counter Statement of the Case 1

. The Facts _ . 4

Argument Ree tee ree enor 23

- I. THE JUDGMENT OF THE COURT OF APPEALS,

SETTING ASIDE THE FINDING’ THAT LEWIS —

NEWTON WAS CONTRIBUTORILY NEGLIGENT,

AND THAT HIS NEGLIGENCE WAS THE PROXI-

MATE CAUSE OF THE ACCIDENT, WAS COR- ©

RECT, AND SHOULD NOT BE DISTURBED 23

A. The Jury’s Finding Was Contrary to the Mani- .

23

ii

ING WAS UNSUPPORTED BY THE EVIDENCE, |

AND RESULTED FROM ERRONEOUS, MISLEAD-

ING INSTRUCTIONS: oo: eosesscsnscee ee noe 29

A. The Finding Was Unsupported by the Evidence. . 2

B. Instructions Relating to Proximate Cause ‘Were

Erroneous and Misleading .............0.0:.--.- 2.

C. Additional Instructions Given to the Jury Were

Erroneous and Misleading ................ ener ee 34

JI THE COURT OF APPEALS CORRECTLY SET

ASIDE THE JURY VERDICT DENYING RECOV-

ERY FOR THE DEATH OF ROBERT MOSES.......... 36

Conclusion ................ ence Eo Paanedn ne Ae ee

tenes Se cepuntiassiesesniniianis a Oe FPO . -&

i

iit

TABLE OF AUTHORITIES

- Begnaud v. Texas & N. O. R. Co., 136 So,2d 123 ie: inal is

- 1962) cssuuscesnsusegsaneecsnneseensansassantorsanessnnneciasanesecgunennannegbesses 24

; »

Boise Payette Lumber Co. v. Larsen, 214 F.2d 373 (9th

Cir. 3954) -- ee icacieaitiaapliieDcoaesitibaon tad aatssanited EL ACRE We - OT”

Bruce v. O'Neal Flying Service; 231 N.C. 181, 56° °S.E.2d

560 (1949) . gonssauesnsonssinsnungeronseensonsenssronsseneshansessosessarsnetents ae

Burdell : v. Denig, 92 US. (2 Otto) 716 (1876) oe te ' 38

Carter v. Anant é& st. ‘shire Bay Ry. Co., 338 US

430 (1949) i SANE eae EIS acl en Pine Sah ier fae

/

ee v. United Staten, 194 P. 2d 974 (5th Cir. 1952) : 25, 28

Chiba, Rock Island and Pacific R.R. Co. v. sioustoh, So. .

U.S. (5 Otto) 697 (WTB)........:.-:.. adoapasdetbensos ant inavedkoneery 34°

D & D Planting Co. v. Employers Casualty Co., 240 La.

684, 124 So.2d 908 (1960) i 130

Daigle v. Louisiana Power & Light Co., ONT F.2d 227 (5th.

Cir.,-1957) ....... Pe ae

Dane v. Canal. Ins. Co., 240 La. 1038, 126 So.2d 335

pRB ee nineteen alweeseere ean ae reeren een eae

SG. Ys

t7 ,

‘DeLima v. Trinidad Corporation, 302 F.ld S85 (2d Cir:

RG ce Sa pM ae

Dirie Drie It Yourself Sys. v. dow rican Boveran Co.,

| 242 La. 471, 137 So0.2d 298 (1962) 30,°33, 36°

r

_

iv :

‘ Fine ‘ * .

’

England v. Lowsiana Board of Medical Examiners, 84

Montellicr v. United States, 202 F.Supp. (E.D. N. Y. 1962)

o

+

a

S. Ct. 461 (1964). Lipset arnietaetin Eads WS DPS nae P TE 34

eens v. ‘ieee Liability Assurance Corporation, a1

So.2d 852 (La. App, 1962) oy... erties 24; 25

" Harvey v. Great American Indemnity Co., 110 So. 2d aaa

(La. App. 1958) apes il eer ee eae oa 30

Huddleston v. Dwyer, 322 U.S. 237 (1944) ica ae

Jack v. Travelers, 112 $0.24 308 (La. App. 1959)... .36

Keyser v. “. 133 US. 8, aR RR eee .~ Beh aacene en 26 °

Kiriluk, v. ‘Kohn, 16 Il. App. 2d 385, 148 N.E. 2d 607

te REE aPC em eS paint ioe 35

sicaihictnias Life Insurance Company v. Foley, 105 U.S." ,

(15 Otto) 350 (1882) ; 26

Leonard | v. ‘fans & Barnes, Ltd., 2 La. 229, 44 So.2d

| 341 (1957) | 30

Le sill v. Railway. Expre ss Agency, 297 F.2d 849 (3rd .

Cir. 1962) . tian 35, 36

McCarthy v. Pennsylvania R. Co., 156 F.24'877 (7th Cir.

1946) ss 26

Merchants Motor Freight. v rca ning, 8th Cir., 227 F. (2d)

247 (1955) : | S

37

Y/

wren,

ba ae

)

4a

. bad * .

Cs 7 , Vv

"Moses v. Central Louisiana Electric Company, 32A F.2d

69 (Sth Gir, 1963) peeecheeselolil EIR hearer eee . 24, 28, 33, 37

Orient Mutual Insurance Company v. Wright, es U. Ss. 1

Wall.) 456 (1864) ccna natin, ai ee. er 26

a Pryor t v. Williams, oh U.S. 43 (1920)... ete . 29°

Rennekamp v. Blair, 375 Pa. 620,101 A ‘a./24 669 (1954) \ 25

Simon v. Teras & P. Ry. Co., 124 So.2d 646 (La. App.

IY a iheccivcg tec Bie enn hsb rn ctagenniusiriazsoritsemeses piiretiecchiies dae a

. ; ~ . — y ‘

‘ Snodyrass-v. Centanni, 229 La. 915, 87.So.2d 127 (1956) 28

Sunkist Growers v. Winckler & Smith Citrus Pr. be 370,

US: 19 (1962) oreo amas ae wf.

' : Za

Teras & P. R. R. Co. v. Bourman, 212 2 US" 536 (1909)

Thacker ved. C. Satis Co., 254 F.2d 1672 (5th Cir: 1958) 4

Tharp v. Mundy, 195 F-2d 987 (Sth Cir. 1952).

.

-%

United States v. River Rouge Improvement Co,, 269 U.S.

ER I oo av eee cca terececoreees tans

\

-)

an

IN THE

~ SUPREME COURT OF THE UNITED STATES

October Term.. 1963

f ; ee No.

CENTRAL LOUISIANA ELECT RIC COMPANY.

_ INC., ET AL..

| Petitioner.

| Ws versus

MRS. SARAH. LOU P. MOSES. ETC.. ET AL..

Respondents.

BRIEF {N OPPOSITION TO PETITION

FOR CERTIORARI *

_ Counter Statement, of Question Presented

- Should ‘the decision of the United States Court of Appeals

for the Fifth Circuit. reversing a jury verdict based on err@h-

eous, prejudicial instructions, and remanding the case for new

- trial, be reviewed by this Court?

_Counter Staterent of the Case

Mrs. Sarah Moses, individually, and as tutrrx of her minor

daughter, Karen Kay, and Mrs. Genevieve Newton, individ-

]

2

- ually anid as tutrix of her minor children, John Edward New-

‘ton and Judith Ann Newton, instituted” suits for the death of

their husbands, Mr. Robert Larry Moses and Mr: Robert

“Newton, resulting when a plane piloted by Mr. Newton, ‘4

which Mr. Moses was a passenger, collided with electric trans-

mission lines suspended between two towers owned by Central

Louisiana Electric Company and crashed into the Intracoastal

W aterway. near the town of Ramos, Louisiana, on November .

8,- 195%, at ee 5:40 P.M.

Named defendants were Central Soulelath Electric Com-

pany and its insurer, Michigan Mutual- Liability Company,

whose negligence was alleged to have been the failure to light

the transmission wires and towers in accordance with the Civil

Aeronautics Administration’s standards and thus failing to

warn aircraft of this obstruction and hazard to air navigation

which was directly in the take-off and landing paths of sea-

planes using two seaplane bases located nine-tenths of a “mile

and six-tenths of a mike, respectively, from the transmission

lines.

_ By means of an n amended complaint, R. S. Woodruff, his

insurer, State Automobile’ and Casualty Underwriters; R. -D.

Cooper, his insurer, Liberty Mutual Insurance Company, and

the United States of America were added as parties defendant.

Charges of negligence directed against Woodruff consisted

of his failure to advise the Civil Aeronautics’ Administration

_ of the nearest landing area, which he knew to be Slaton Sea-

plane Base, as requized in Form ACA-117, filed by Woodruff

with the Civil Aeronautics Administration, pursuant to in-

structions given him by Central Louisiana Electric Company,

who had éngaged him to design the transmission lines and

-towers; in failing to provide markings, signs and lighting fa-

‘e

3

cilities on the towers and lines and negligent design and super-

_-vision_of the construction of such towers and lines.

* Defendant R. D. Cooper, the contractor who erected the

transmission towers and wires, was let out prior to submis-

sion of the case to the jury. A motion to dismiss filed on—

behalf of the United States of America alleging that the sup-

plemental complaint naming it as defendant showed on its face

that the action was brought after the expiratign of the two-

year limitation period prescribed by Title 28, United States

Code, Section 2401(b), was granted.

Following a trial to a jury, the verdict returned by the

_ jury stated in response to the special issues that it found i

Central. Louisiana Electric Company guilty of negligence, that

such negligence was not the proximate cause of the accident;

' that Woodruff was not negligent; that Mr. Newton was negli-

. gent and his negligence was the proximate cause of the acci-

dent.

Plaintiffs’ motion requesting. that the verdict in favor of ©

defendants be set aside and a new trial be ‘granted limited to

the question of quantum only, or in the alternative that a

new trial be granted on all issues, was denied by the trial

Court. 5

On appeal, ‘the United States Court of Appeals for the

= Circuit affirmed the judgment in favor of defendant,

R. S. Woodruff, and reversed the judgment in favor of -defen- |

dants Central Louisiana Electric Company, Inc., and ‘ts in-

surer, Michigan Mutual Liability Company, and remanded the

case for new trial.

v

_ 4

the Facts

On November 8, 1957, Louis. D. Newton: flew ‘a twin-

engine Grummond G-44 Widgeon amphibious plane, based at

- Slaton Seaplane Base, and owned ‘by his employer, Kerr- ~

McGee Oil Corporation, to an oil rig in the West Delta area,

near the mouth of the Mississippi River, carrying as his

‘passenger Robert L. Moses, also employed by Kerr-McGee.

(Tr. pp. 181-2, 648.)* .

Desmond S. Hare, chief ‘pilot for Slaton Seaplane Service,

(Tr, p. 176), had also flown out of Slaton Seaplane Base that ~

afternoon, and during his return flight to the base received

a message from Newton, who stated. that he was passing .

Houma and was about ten minutes behind Hare, -traveling in

the same-easterly direction (Tr. p. 183). Continuing on, Hare

‘noted that.the wind was out of the west-northwest, and since

it was dusk. ‘approximately five minutes past five o'clock, it

was best for him to make his landing by dropping. “down to

tree level height and go in undef the Central Louisiana~Elec-

tric Company’s wires, using a strasght-in approach. (Tr. p.

184.) A considerable amount of boat traffic on the Intra-

coastai Waterway on which Slaton Seaplane Base was located -

made it necessary for Hare to land a little bit short. (Tr. p.

184.) At approximately 5:30 P.M., Newton, coming from the

‘same ‘direction, crashed into the wires suspended across the

Intracoastal Waterway.

Eyewitnesses te the Accident.

George Reynolds, district supervisor of May Bros., who

flew out of Slaton Seaplane Base for the past four years, was

Tr. ig used throughout the brief to denote references to the trial

transcript. A ; Ss

9)

driving west on Highway 90, which parallels the Intracoastal

Waterway in the vicinity of the site of the crash. -(Tr. pp.

242-3, 248-9.) When he reached a point three-quarters of a

mile west of the Central Louisiana Electric Company's tow-.

-ers, Reynolds saw a plane with its clearance light and ro-

tating’ beacon on out of the left side of his windshield. (Tr.

pp. 245, 249, 258.) At-that. moment the plane was between

Reynolds and the towers, over the water, parallel to the water-

way, at an altitude estimated at 600 feet by Reynolds. (Tr.

pp. 245, 250-1.) Shifting his gaze from the plane, Reynolds

' next remembered seeing “flash sparks” and then the plane in

the water (Tr. p. 246); one of the wires. suspended from the

towers was down’ and in the water (Tr. pp. 254-5.)

Mr. and Mrs. Bernie J. Hebert. drivi ing east on ile

90, were just passing ‘Slaton Seaplane Base when they saw .

a light in the sky through the right side of the ‘windshie!d.

(Tr. p. 267.) Mr. Hebert realized the lights were on a plane

_ which appeared to be about as high as the towers, coming in

.a westerly direction to make a landing on the water.- (Tr. pp.

261-2.) “Mr. Hebert was unable’ to discern the wires. (Tr. pp.

262-3.) Keeping the ‘plane in his view, Mr. Hebert saw it stop

in mid-air, as though it had hit the wires, and a-flash occur-

“ped. (Tr. p. 265.) Trees then blocked Hebert’s view until he —

reached the Bayou Boeuf Bridge, at: which time he saw the

plane in the water. between two boats. (Tr.’pp. 2635-4.) A

wire from the tower was lying across the electric wirés run-

- ning beside the highway. (Tr. p. 265.) Mr. and Mrs. Hebert

turned back and used the phone at a nearby house to summon

the Morgan City police. (Tr. p. 266.3 Although the Heberts

Stayed at the scene some time thereafter,. they were unabie

to seé rescue operations because darkness had set in. (Tr. pe

266.)

° mas 6

Lioyd V. Funchess, Jr., a pilot in the employ of Guarisco

- Construction Company, had returned from a flight that after-

noon, and was talking to a mechani at the Guarisco Seaplane

Base, tocated just east of the Slaton Seaplane Base on the

Intracoastal Waterway, shortly before the accident. (Tr. PP.

ote?) Funchess saw a plane approaching from the east,

just above the towers, making a left-hand turn to line up

with the canal. (Tr. pp. 285-6, 291.) The position of the plane

was approximated by Funchess as being at least two or three

' thousand yards east of the towers at that time. (Tr. pp.

291-2.) The plane then went out of Funchess’ line of vision,

; and he next heard a crash or exmosion. (Tr. pp. 286-7.)

Looking down the canal, he saw a ‘Spias!. of water as the air-

craft hit the water. (Tr. p. 286.) The mechanic and Funchess

immediately put a small boat overboard, but when they got

to the scene only the tail portion of the plane was still above:

the surface of the water. They secured the tail to the off-

shore boat located near the plane, to keep. the plane from

sinking further. (Tr. pp. 287-8.) The offshore boat wreggee

the plane *o shallow water. am: p. 288.)

Levi Wilson “1st saw the plane east of him, headed west _

with its wing light on, as he was- seated on “the fender of.

his car in the driveway of the Maguire house 317 feet off

Highway 90 at Bayou Ramos. (Tr. pp. 315-6.). As the air-

— was passing Wilson, it was over the Intracoastal Water-

ay. (Tr. p.-318). Moments ‘after Wilson took his eyes off

the plane, he heard a crash, saw it stop in mid-air (Tr. p-

- 323), and saw it falling into the water. The witness could

_ not see the wires or towers from his vantage point (Tr. pp.

319-20): he then drove to the scene and saw soémeone tying.

a rope to the plane (Tr. p. 320).

7 °

Captain A. A. Smith of Coylé Lines, Inc., on the day of

the accident, was in the wheelhouse of a tugboat proceeding _

east on the Intracoastal Waterway towing five barges having |

an overall length of 1100 feet. (Tr. pp. 437-8, 440.) The wit-

ness stated it was just about twilight and the running lighis .

of the tugboat were on, consjsting of a white range light on

top of the mast which could be seen aii around, horizontal

and straight above; the other lights could be seen only from

the front. (Tr. pp. 445-6.) As Captain Smith passed the

Slaton Seaplane Base, he met an offshore boat going in the

opposite direction with its running ‘lights on. (Tr. pp. 439,

445,) A space of about 25 feet separated the tug and its

barges from, the west-bound offshore boat. (Tr. pp. 451-453.)

: | prs |

— ‘When Smith's tugboat was just beyond the wires, the wit-

ness first saw the aircraft, coming over the tree tops, approx-

imately 25 or 50 feet above them, ata 45-degree angle, one-

half to three-quarters of a mile east of the tugboat. (Tr. pp.

443. 431.) After cat¢hing sight of-the plane, Captain Smith

directed his attention to the waterway; he next saw the plane

_ when one of the men in the wheelhouse shouted that a plane

was falling’and looked like it would hit the last barge. (Tr

p. 443.) At that moment, the stern of the Jast barge was

beyond the towers: (Tr. pp. 443-4.) Captain Smith looked

back and Saw the plane falling into the water about in the

middle of the. Intracoastal Waterway. (Tr. p. 445.) He im-

mediately slowed the tugboat, turned back to return to the

plane in the event someone in the plane had jumped or Was

thrown clear-into the water. (Tr. p. 446.) The witness ob-

served a winch truck attaching a wire to the plane; theres; :

after, Captain Smith assisted in.removing the plane from the

chanhel. (Tr. p. 447).

,

-

2, Establishment and Operation of Slaton Seaplane

Dan Slaton testified o_ his seapiane base was estab-

lished in 1953; in addition “to renting: space and” providing

services for seaplanes belonging to other companies, Slaton

chartered his own planes, operated, by him or his employees,

‘Roger Ward and Desmond Hare. (Tr. pp. 482, 485.) Approxi-_

mately fifteen takeoffs and, landings were made a day petween

_1953 and November 1957, not including his own aircraft, and

the base has not been closed a single day since its opening.

(Tr. p. 483). On October t6, 1956, Slaton was- issued an air

_ carrier certificate authorizing him to operate as an air taxi _

operator and certifying that Slaton Seaplane Base has met the

"’ regulations, and standards applicable thereto. (Tr. pp. 485-6.)

When the construction ®f the towers and high lines began, .

Slaton wrote to Central Louisiana Electric Company (herein-

after refrvred to as CLECO}) on March 12, 1956, requesting the

installation of extra markiug= on the wires in order to make

them easier to see‘since they were a hazard to air traffic

using his seaplane base. (Tr. p. 488: copy of letter marked -

Plaintiffs’ 38.) Because the towers were also directly in the

path of planes taking off and landing, constituting a hazard

to air navigation: Slaton assumed CLECO would equip them

with lights, especially in view of the fact that all other towers

‘in the vicinity were lighted. ' (Tr. pp. 488, 492-3.) The wit-

ness knew of no towers within 4,000 feet Of a landing base.

as CLECO’s towets are, which are not lighted. (Tr. p. 506.)

Desmond Hare, employed as an office manager by Siaton

in 1954, and later flew Slaton’s plane (Tr. p. 176), stated that

during the construction of these towers he asked a CLECO

9°

_ employee pointed out to him as being in charge of the, job .

if lights would be put up every 150 feet on the towers. (Tr.

pp. 177-8.) This employee informed- Hare that he was aware

there would have to be lights and everything was being taken

care of. (Tr. p. 178.)

a Hr ; ,

3. Design and Construction of the Towers by CLECO. ‘

. s - —

On May 12. 1953, R. S. Woodruff of Fort Worth was

contacted by Mr. Bonnette, an official of CLECO, with re-

spect to preparing plans and specifications for‘certain towers —

over the Atchafalaya River, Bayou Boeuf and Bayou Shaffer. -

Ory. pp. 353. 355.) Woodruff explained that his brother had

been doing work fer CLECO in 1953, and after he became

associated with his brother, Woodruff had been performing

work for them “on a more or less continuous basis © * *”

(Tr. p. 349.) ;

‘Woodruff sent crews to the area of Bayou Boeuf, be-

ginning in March of 1954, to make surveys under the direc-

_ tion of CLECO, who designated the locations for the towers

involved in this accident, known as Bayou Boeuf No. | near

Ramos. (Tr. pp. 555-7.).-The survey, encompassing 5\), feet

on each sid .of the center line, was under the direction of

Woodruff’s employee, C. T. McNeil, who sent. field notes to

Woodruff's office during the progress of the work (Tr. py.

_ 357-8.) The final routing was made in May of 1955. (Tr. p.

355.) The‘towers were-214 feet from the top of the steel to —

the mean highwater mark of the Intrmeoastal Waterway (Tr.

p. 367); Woodruff’s plans and specifications did not provide

for marking and lighting of these towers and lines in any way.

(Tr. p. 375.)

10 ‘a

Bonnette of CLECO requested Woodruff to contact the —

Civil Aeronautics Administration office in Fort Worth" to’

- ascertain what forms should be filed with that agency in con-

nection with the’ construction of the towers and wires. - (Tr.

p. 381.) Bill Howe, one of Woodruff’ s employees, secured the

necessary forms, filled them out; Woodruff signed them and

sent a letter of transmittal to the Civil Aeronautics Admin- *-

istration. (Tr. p. 382.) The form, dated October 24, 1955, en-

titled “Notice of Construction or Alteration’ ACA-117, was

introduced in evidence as Woodruff 2A: (Tr. pp. 385, 387, —

389.)

Paragraph 5 of this form asked for the name of the near- .

est landing area to the proposed structures, which was answer-

ed by Woodruff and. his employees by the words “None

_ known.” Pa 6 requested the distance and direction of

the nearest landing area from the structures and was answer-

ed by a “little dash” on the — and nothing more.

(Tr. p. 386. )

Form ACA-117 was received by Earl Stone of the Civil

Aeronautics Administration (hereinafter referred to as CAA,

or by Federal Aeronautics. Administration, FAA, successor

_* to the CAA) on October 31, 1955. (Tr. p. 392.) Woodruff

_ testified he received no answer to his letter of transmittal and

assumed the forms were sent back to CLECO. (Tr. p. 392.)

Thereafter, no CLECO official ever told Woodruff to place any

. special marking, painting or lighting on the towers. (Tr. p.

399.)

Woodruff testified he did not knéw: personally of the

existence of Slaton Seapianée Base, nor had been informed of

_ it through his erhpioyees or those of CLECO, until the tak- —

‘

11

_ ing of his deposition in 1960. (Tr. pp. 398-9. ) Form ACA-117;

in requesting the: name of the nearest landing area, defined

landing area as a place. where. land or®%seaplanes are landing

and which is noted in the Airman’s Guide. (Tr. p. 397.) Wood-

ruff testified he bélieved his responsibility as an engineer

’ placed on him the duty to follow the instructions on Form

ACA-117 and to have his employees check air charts as well

as the Airman’s Guide for any landing -area listed therein.

(Tr. p. 397. ) Because Slaton Seaplane Base did not appear in

such charts and guide, Woodruff, through his employees, did

not advise .1e CAA that the towers’ and wire would be 4000

feet from this seaplane base. (Tr. p. 398.)

In Kis deposition of June, 1960, Woodruff stated he did

some flying ¢Tr. p. 405), and in answer to the ‘question of

what steps he would have taken had he actually known these

- 214- foot towers were 4,000 “feet fron, Slaton — Base,

he gave andy answer as follows: :

“I would have consulted with my client, in a prob-

ability. After discussin’ with him, I would have saija,

‘It kind of looks like to me like you ought to put\some

kind of flagging or streamers or something on these top

wires. It is a daytime operation, arid that ought to. suffice -

unless the CAA ‘hes some different recommendaticn.

Suppose we go and ask them’; and I would have gone and

' asked-them and come back to my client and said what’ it

was, and if he said ‘I don’t want ‘it,’ I would have said

‘Well, I have advised you.’” (Tr. .p. 403).

- ©William M. Howe, a junior office engineer with Wootiruff,

testified he was asked by Woodru/f to contact his former em-

“ployer, the CAA-FAA, to find out about the necessary docu-

ments for completion or a notice for work going

12 a>

on at three crossings, Ramos, Berwick and Pharr, Louisiana.

(Tr. pp. 627-8.) Howe spoke with. Earl Stone of the CAA-.

FAA, and subsequently received several copies of the “Notice

_of Construction or Alteration” Form ACA-117. (Tr. pp. 628- ‘

9.) After reading the instructions on the back of this fori,

Howe consulted current aeronautical charts, the Coast Guard -

Chart (Tr. p. 631), and found the closest landing area listed

- on these charts to be Williams Memorial Airport at Patter-

son, Louisiana, approximately. seven or eight miles away. (Tr. |

pp. 632-4) It was Howe's belief that he also ‘consulted the

Airman’ s Guide; although he did not recail- doing so and did

‘not find Slaton Seaplane Base. (Tr. pp. 632-4.) After these

forms were filed with the CAA-FAA, Woodruff asked Howe

to contact Mr. Stone to determine the current status of the

documents. (Tr. pp. 635-7.) Stone advised that the forms

had been forwarded to CLECO. (Tr. p. 637.),

On cross-examination, Howe testified his work with Wood-

ruff in connection with these towers consisted of the reduc-

tion of field notes on to various maps and cross-sections of

the crossings. He did not’ know if these field notes contained

any information relating to landing areas or a ae

In the preparation of the CAA- FAA forms, Howe assumed .

‘Woodruff had looked at the current aeronautical charts with

him. (Tr. p. 640.)

It should be ‘ented that the CAA-FAA requires any per-

_ son constfucting a structure over 150 feet high and within

15,000 feet of a landing area or 20 miles of a’ civil airway

must file a “Notice of Construction or Alteration” Form

ACA-117, (Tr. p. 542.) Moreover, George Lambrose, plain-

tiffs’ expert, testified that the official aeronautical chart of

‘Louisiana, dated April 1, 1953, as -well as other current’ aero- -

wr

13

_ nautical -charts, showed that Brown: and Root’s Airfield was

located within 15,000 feet of the CLECO towers involved in

' this accident and aso within 20 miles of ac vil airway. (Tr.

pp. 595-7, 600.) ;

- When Howe was questioned regarding his pera to list

Brown and Root Airfield on the Form ACA-117 as the near-

est landing area, which Howe admitted was included on the

aeronautical charts and presumably in the Airman’'s Guide,

Howe was unable to explain. (Tr. Bp. 641-3.) His answer

was as follows: «!

“Q. You weren't ineseneuned then in giving the name of

_-the nearest landing area?

ahs For the purposé of the form, no, sir.”

Howe could not say whether he looked for the Brown and

_Root Airfield in the Airmant’s Guide “because of the time

Japse.”’ (Tr. ‘Pe 643.)

. N, A. iiaialan, an electrical engineer with CLECO, tes,

tified he was in: charge of construction of the towers at

Bayou Boeuf (Tr. p. 458-9 as project engineer (Tr: p. 461),

approving plans and spegifications for the toyers submitted

by Mr. "Woodr uff (Tr. p. 461.) While Mr. Berry was the direct

supervisor of the job, Mr. Bonnette visited the site quite often

(Tr. p. 460.) Before, during and after construction of the

towers, Mr. Bonnette knew * ‘Slaton’s place”’ was there (Tr. p.

464}, and he-“did know possibly that structures of that ?pe

might or should have been lighted” (Tr Pp. 463). Of is e-

position taken September 27, 1961, he was asked if he

aware such towers could be hazardous for aviation, 1 Which

he answered yes. (Tr. p. 464.) Mr. Bonnette testified he

would repeat _ that answer on _the stand. (Tr. p. 464.4 Also, , -

‘

Pa

os)

. 14

on his aaa the following — was: Boris to aie.

Bennette: :

“Q. I will ask it again, ‘Was it your understanding that

where such a tower, such as 10 and 11, these two

towers in question, were within a certain number of

feet . . . let’s say 4,000 feet off of a landing base,

landing field, that there were certain’ requirements

as to the markings of such towers? Do you know

that?’ And your answer was, ‘Yes, if that tower had

been at a - -’- And then there were two dashes, ‘with-

in the proximity of a landing field, I would say that

we would have possibly lighted them, I don’t know.’

- Did you answer that?

“A. As I recall I answered it just that way, yes.” (Tr.

p. 465.) iy : : .

7 ‘Mr. Bonnette did not recall having any conversations

with Mr. Woodruff or his employees with regard to the fact

that Slaton Seaplane Base was 4,000 feet fromthe towers

and didinot give such information to the CAA (Tr. p. 466);

‘although he did know that the CAA was to be advised that

the construction was to, take place (Tr. p. 466). It was Mr.

Bonnette’s testimony - that he did not see a copy of the form

filed by Mr. Woodruff with the CAAxuntil after the accident

. (Tr. pp. 467-8), and presumed. that the form was received

- from the CAA hy Mr. B. 18. McGrain, in charge of, the right-

of -way department in Alexandria (Tr. pp. 468-9). “Mr. Bon-

_nette did not recall whether he wag nctified by Mr. Woodruff

or Mr. Randali, his superior, that there were no require-

'_ ments, made by the CAA;. however, on } is deposition he stated

* that: ; ;

ae

15

“Q. I will read you the question, and theri - - this is on

: Page 78, ‘Well, on this particular job for the Bayou

Boeuf crossing, were you informed of any approval, -

disapproval, or action on the part of the CAA?’ You

said, ‘Yes, I was notified by Mr. Woodruff in a tele-

phone conversation that there were no requirements

as far as they were concerned. Question: Mr. Wood-

‘ruff told you that personally? - Verbally? Answer:

I don’t recall whether it was F. E: or R. S. Question:

One of them told you? Answer: Yes. Question: And

you saw and had copies of the applica‘ion itself?’

And you answered, ‘Yes, sir.’"’ (Tr. pp. 470-1.)

*

By a explanation Bonnette again asserted he did

° ’ -

not have a copy of the form as of the date it-was forwarded.

to the CAA Officials, but only after the accident. . \

“This is Page 83: ‘I see. You don’t know who in :

CLECO would ‘kpow? Offhand, no, sir, l would not.

Have you ever notified anybody in the Alexandria

. office? I have no reason to, so I did not. ‘A copy

was good enough - - You got a copy at that time?

Well, that is the original that Mr. Stone sent. Yes.

Now, the copies I refer to’ are —photostatic copies

Is that just as legal as - - What I'm trying to get at

is when did you get the copy? Answer: “The copy of -

the form was sent to me, or I got it tate r, consider-

ably later, from Mr. Woodruff.’ ” (Tr. p. 4036)

Mr. Berry, field engineer with CLECO. testified he Wis

ineharge of the construction of towers at Bayou Boeui, (Tr.

p. 477.) The fact that Slaton Seaplane Base was located 4,000

feet from the towers and that planes were ianding and taking

off there before, during, and after the construction was ad-

mittedly known to Mr. Berry. (Tr. 9. 479.)

‘Mr. R. D. Cooper, an fre. trae contracto. who entered -

into a contract with CLECO to erect towers and transmission

lines (Tr. p. 422), furnished only labor, ‘supervision and tools.

(Tr. p. 423.) Mr. Berry, supervisor for CLECO, was on the job

every day. (Tr. p. 423.) No fequest to paint or light these

towers. and lines was ever made?by anyone for CLECO. (Tr.

p, 424,) Cooper was asked by Bonnette to install six orange

balls on the wires as they were being strung. (Tr. p. A425.)

. &* ; = .

4. Requirements of the CAA-FAA Concerning Marking

and Lighting of CLECO’s Towers and Wires. _

kar! Stone, testifying as the Court's witness, stated that

he was employed by the FAA, and in 1955 was an air spiace

‘utilization officer concerned with anything which might be

regarded as an obstruction to air navigation. (Tr. pp. 523-5.

The witness stated that towers 214 feet high. tocated 4,000

feet from a seaplane base, such as thosé involved in the case

at bar, would be desigrated by the FAA as obst ructions to air

- Navigation. (Tr. pp. 535-7.) Such obstructions should be

painted intert.ational orange ahd white in alternating stripes.

(Tr. p. 537.) Stone ‘testified that the CAA-FAA has published

a r.anual entitled “Obstruction Mas ling and Lighting Stand-—

ards for Marking and Lighting Obstructions for Air Naviga-

tion,” of which the latest publication is dated November 1,

1956 (Tr. pp. 527-8.) On page 10 of this manual appears spe-

_ Cification A(2), which was read to the jury. dealing with the

lighting of such an obstruction to air navigation as was pre:

sented by CLECO's towers

“Q. When the particular obstruction is more than 150

feet but not more than 309 feet. in overall height

above ground or water, if so situated therg should

be installed at the top of the obstruction a flashing

17

300 .millimeter electric code beacon, equipped with

two lamps, and aviation red-colored filters. The two’

lamps of the beacon should be burned simultane-

ously, and each lamp should be at least 500 watts.

“Where a rod or other obstruction - - or other construc-.

tion of not more than 20 feet in height and: incapable of

supporting this beacon is mounted on top of the obstruc-

tign, and it is determined that this additiénal construction

does not permit. unobstructed visibility of the code bea-

con from aircreft at any normal angle of approach, here

should be insta'led two such beacons, positioned so as to

ifisure unobstructed visibility cf at least one of the bea-

cons at any normal angle of approach. At the approxi-

mate mid point of the overall height of the obstruction

there should be installed at least two lights, each light

consisting of a lamp of at least 100 watts enclosed in

aviation red obstruction light globes. Bach light should

be placedson diagonally or diametrically Opposite positions

of the- obstruction and mourited so as to insure unob-

structed Visibility of at least one light from aircraft at

an. normal angle of approach. In case of triangular or

rectangular-shape tower, the light of the mid-ievel should

be mounted so as to imsure unobstructed visibility of at

least one light from aircraft at any normai angle of ap-

proach, or a light should be installed on each corner of

the. tower at this Jevel” (Tr pp. 31-2.)

°

Therefore, a tower bufween 150 and 6%) feet hich, within

34m) fect of a landing area, eo within 20 miles of a civil air-

way. would have to be lighted as prescribed in the foregoing

specification... (Tr. p. 532.) ‘ ;

“The CAA-FAA manual provided for marking of overhead

wires as follows:

Ay -

18

“Overhead wires: Marking devices placed on overhead

wires should be spherical in shape with a diameter of not .

less than 20 inches, or may be of other shapés provided

the projections of such type of marker on any vertical

surface normally to each direction from which an: air-

craft is likely to approach the obstruction will not be less

than that presented by the spherical- -type marker de-

scribed above. At least one such marker should be dis-

. played for each 150 feet or fraction thereof of the overail

length of the’ overhead line. These, markers should be

placed at equai intervals not more than 150 feet apart

with the top of each marker not below the level of the

highest wire &t the point marked, and’should be ‘covered

as specified-under the marking of obstructions by colors.

The distance between markers and overhead wires lo-

cated more than 15,000 feet from the reference point of

any landing area may be increased toa distance of not

- more than 600 feet - -”

+ And if. you were to assume that the distance between

two towers is 1250 feet, then how many balls or

markings should be placed? -

“A. I believe thé Manual stated, they recommended every

_ 150 feet or fraction thereof, so it would be a matter

of dividing that distance by 150 feet.

“@. And if there were only six of these markers placed,

* six of these balls placed there, would it be two balls

short, wouldn't it?

oe belheve, that is correct, sir.” (Tr. pp. 540-541.)

Any person constructing a structure over 150 feet high |

within 15,000 feet of a Janding area or within 20 miles of a

civil airway was: réquired by the manual, page 24, to file a

notice of construction ‘or alteration, Form ACA-117. (Tr. p.

19

542.) Such notice of construction, or alteration, signed by

’R. S. Woodruff, was received by Eari Stone. (Tr. pp. 543-4.)

Following receipt of such’a notice, Stone stated Ke would first

check the location of the construction and also to see if there.

Was any landing area listed on the Form ACA.1i7 which was

submitted. (Tr. p. 546.) Stone would then pict the location of

the structure on an aeronautical chart, and e:.amine the chart

‘to see if any. landing ‘areas or Civil airways existed in the

vicinity. (Tr. pp. 546-7.)

' In order to determine whether or not civil. airways or

.

landing areas were present, Mr. Stone. used sectional aero- ~

nautical charts which show airports, aids to navigation, and

‘civil airways (Tr. pp. 547-548), as well as Form 29A, showing

‘all détailed information on each airport such as leneth of run-

ways and elevations (Tr. p. 548). He also referred to the Air-

man’s Guide to ascertain if there were any airports listed in

the Guide that were not yet published on aeronautical charts.

(Tr. p. 548). Stone stated that he relied in part upon the in-

formation furnished by CLECO on Form 117 and did not go

to the site of the construction. (Tr. p. 549.)

2

-

Mr. -Stone explained that a landing area is defined as

follows:

“Landing areas shall mean any locality either on land or

water including airports and intermediate landing fields

which. is listed as an airport in the current issue of the

Airmen’s Guide and is used for the landing and take-off

of an aircraft whether or not facilities are provided for

sheltering, servicing or repairing aircraft or for receiv-

ing or discharging passengers or cargo.” (Tr. pp. 551-2.) |

‘i

The boundary of a londing ‘area as defined by the man-

ual was given as follows:

va -

_-)

20

“A..The boundary of a landing area shall mean, ‘(1)

Any one of the limits of. that portion cf the landing

area maintained for the use of land aircraft in taking

off for landing: or (2) Any one of the limits of that

portion of the landing area used for water aircraft in

taking off or landing, which limits are desjgned as

being 5,000 feet in all directions measured over on

water from the principal ramp of the landing area or

if marked in acéordance with standard practice, the

Hmics of the landing area so marked.’ ” (Tr p A

a

The. witness explained that the owner r of ‘the airport sub-

mits « form to the FAA ‘requesting his airport be incl fed in

current aeronautical charts and specifications (Tr. p. 552.)

Should -he fail to do os - ‘oe airport dees not appear” on the

aeronautic ‘ab charts of Airmen’s Guide. (Tr. p. 553.)

The District Judge asked Stone what procedure he would

. follow in the event an individual! or corporation file| Form

ACA-1i7, listing as the nearest landing area a base not listed

in the aeronautica! chart and Airman’s Guide. and the witnes:-

responded as follows: — , Be

“T would normally write the operator of the airport as

listed on this form and advise nim there is a proposed

construction and give him the specifics on the case and

sec if he had any recommendations cohcerning this pro-

posed construction and of course my action would be hased

to some extent on what his reply contained.” * (Tr. pp.

DDT.) seas

If it were economicaliy feasible. Stone added that he might

_ send someone to the location. (Tr. pp. 558-3.)

_.The witness was asked what steps he would take if he

received a Form ACaA-117 which listed the nearest boundary

uo

- ‘eee

of a landing area as 4,000 feet from the — structure,

and replied as follows: bee ‘

“A. Well, first of ali, if it-had the airport listed as yéu

specified, then I would need additional information,

so, therefore, as I stated previously; 1 would go back

to the airport operator and ask him what direction

are your approached (sic) at this base, -hecause it is

possible that the construction could be in theapproach

area, which would require more rigid marking and

lighting than if it were not in the approach areas.”

- ({EXmphasis supplied, Tr. pp. 559-64). )

Even if a Notice of Alteration. and Construction, Form

ACA-117, was not required to be filed. but was actually filed

with the CAA- FAA, Stone-testified that he would recommend

the structure be markéd and hghted as would be appropriate .

to) the operation of the adjacent airport if he tuund the seruc~—

ture to be an obstruction. (Tr. p. 560.) Furthermore. he

would issue a hotice of this obstruction to the Airman’s Guide

‘ so that it could be included therein. (Tr. p. 560.) .

Mr, George Lambros, who has specialized in buying, .op-

erating and selling Widgeon aircraft. the same type that Mr.

Newton flew, and has flown 7500 hour: in Widgeons (Tr. p.

513), testified that the Corps of Engineers, US. Army Map

of the Morgan City area, dated -1955, showed the Brown and

Root Airtield to be within 15.000) feet of the CLECO towers.

(Tr. pp. 595-7—-marked plaintiff 39.1 The officia! deronautica!

. chart of Louisiana dated April 1, 1953, marked plaintiff “11.

also showed the existence of the Brown and Root Airport

(Trp. 598.4 The N. O. Sectional Aeronautical Chart angi fhe

cai World Aeronautical Chart for Galveston Bay Area—marked

plaintiffs. 42 and 4. respectively (Tr. p 600), dated Feb.11

22

1957, showed ‘that Victor 20-South Civil Airways is approxi- .

‘mately eight miles to the edge of the airway and the 13 -niles |

to the center ‘of ihe airway from the Slaton Se&plane Base.

o>

Thus, despite the fact that Slaton Seaplane Base was not

_ listed in the aeronautical charts or the Airman’s Guide at the —

time Woodruff filed Form ACA-117 on behalf of CLECO,

Brown and Root Airport and Victor 20-South Civil Airway

were *~cluded on these documents, and Brown and Root Air-

port should have been listed as the nearest landing area. The.

proximity of the Brown and Root Airport as well as the Civil

Airway required that lights be installed on CLECO’s towers

_in accordance with specification A(2) quoted above and found

on pages 531-2 of the transcript.

3. Evidence Relating to the Hazards to Air Navigation

Inherent in‘the Location and Height of CLECO’s Un- .

: marked, Unlighted Towers and Wires. 7

The uncontradicted evidence educed from George Lam-

bros and pilots whose planes were’ based at Slaton or Guarisco

Seaplane Bases, showed that the towers and wires were in the

gliding area of the Widgeon Newton was flying prior to the

. fatal accident. (Tr. pp. 190, 585-6.) The safest means of Jand-

ing was to fly under these wires ivr several reasons. (Tr. pp.

188-9, 283, 341, 586.) Mr. Hare stated it was impossible for

a Widgeon to. g@ over the wires and then begin its descent

without straining the craft's ‘structure. (Tr. p. 236.) “Hare

also tesiMied that a landing east of the wires was not feasible *

because taxiing the airplane the necessary distance .o the

base would cause the engines to overheat. (Tr. p. 226.) In

addition, flyii.g over the wires presented tlie possibility of the

plane stalling and falling into the wires. (Tr.-pp. 188, 587.)

= .

bd

i

23

_ Hare testified that on the day of the’ accident it would

\ ‘have been out of the question to come in from the west be-

. \_Aause of heavy boat traffic (Tr. p. 219), leaving a pilot such

as Newton no choice but to come in from the east under the

wires." Hare and Funchess both testified they knew of no.

regulation forbidding ay aviator from flying under such a

structure. (Tr. pp. 227, 289.) .

/ ~~* The'dull silver color of the towers made them extremely

hard to see. as they blended in with the foliage. (Tr. p. 192.)

The wires, unmarked except for six red balls, were very difli-

cult to see (Tr. pp. 192, 284-5, 329), and in Roger Ward’s

words were ‘a’ “known hazard” (Tr. p. 345).. Photographs

taken from the front of the plane on t#® final approach, every

100 feet, marked plaintiff 11-35, Tr. p. 199, were taken by

Desmond Hare on the same type Of day, and at the same time

as Newton made‘his landing. (Tr. pp. 193, 196.) Plaintiff 30,

an enlarged photograph showing the approach from the east, -

clearly indicates how difficult the towers and wires were to

discern. {Tr.. p. 199.)

6 ARGUMENT

I. THE JUDGMENT OF THE COURT OF APPEALS, SET-

TING ASIDE THE FINDING THAT LEWIS NEWTON

WAS CONTRIBUTORILY NEGLIGENT AND THAT

HIS NEGLIGENCE WAS THE PROXIMATE CAUSE |

OF THE ACCIDENT, WAS CORRECT AND SHOULD

NOV BE DISTURBED. “2

A. The Jury's Finding Was Contrary to the Manifest:

Weight of Evidence.

~ oe 5

mm

~

24

_ “Under the law of Louisiana “. . . in the absence of clear

creditable evidence to the contrary, a presumption of due care

_on the part of the deceased rises to the dignity of evidence.”

Finn v. Eniployers’ Liability Assurance Corporation, 141 So.

2d 852, 875 (La. App. 1962); Begnaud v. Texas & New Or-

leans Railroad Co., 136 So.2d 123 (La. App. 1962), cert. de-

nied, (1962 ); Simon v. Texas & ‘New Orleans Railroad Co.,

124 So.2d 646 tLa. Apr. 1960), cert. deniéd (1962), :

*

An examination .of the record discloses’ ‘that petitioners

were unable to present any evidence indicating contributory

negligence of :Louis Newton; moreover, testimony -given ‘by,

plaintiffs” witnesses showed that prior to the crash Newton ‘:,

Was employing the safest methods of making.a landing.

- Pilots who had made such a landing stated that the safest

procedure was to begin fhe approach 1,000 to 2,000 fect east

of the wires (Ward—Tr. p. 342; Lambros—Tr. p. 586), and

to fly under the wires (Hare—Tr. pp. 188-9; Funchess—Tr:

p. 283; Ward—Tr. p. 341; Lambros—Tr. p. 586). Eyewitness —

Funchess testified that. he saw Newton's plane. approaching

from the east, 2,000 or 3,000 yards east of the towers, at al

altitude just above the towers. (Tr. pp. 291-2.) Captain Smith

estimated. the plane was one-half to three-quarters of a mile

east ot the towers,°25 to 50 feet above the treetops. (Tr. pp.

433-451.; As the Court of Appeals noted in its cpinion, “That

was a customary route of apprdach to the Slaton Base.”

Moses v. Central Louisiana Electric Coppeny, 324 F.2d 69,

71 (5th Cir..19637. .

“

; Newton's plane did not pull up intg the wires, but rather,

witnesses saw the aircraft stop in 7M ‘and then fall into

the water. - (Hebert—Tr. p. 263; Wilson-— Tr. p. 323.) Testi-

mony that the wires. were almost impossible to see (Hare—-

>)

Tr. p. 192; Ward- -Tr. p. 345), coupled with the photographs

giving graphic evidence of this fact (Tr. pp. 193-200, plaintiffs’

11-35), lend support to the probability that Newton was mak-

ing a customary ‘Janding and crashed When Ke collided with

the invisible wires. ;

It was encumbent upon petitioners to prove Newton Ww < o

coritributorily negligent, and this burden. cannot be dischar ged

by a showing of mere speculation or conjectur e. Chapman v.

United States, 194 F.2d 974 (5th Cir. 1952): Finn v. Employers

Liability, Assurance Corporation, supra. The happening of an

accident does not give rise to a presumption of such negli-_

gence; the occurrence of an accident is insufficient to take the -

case to the jury. Renhekamp v. Blair, 375 Pa. 620, 101 A. 2d

669 (1954)...

Because petitioners ,resented no evidence that negligent

acts were committed by Newton which resulted in the crash,

| the jury’s finding that his negligen¢e proximately caused the

accident was clearly erroneous, ‘and was properly reversed

by the Court of -Appeals.

o

B. Instructions Relating to the Issue of Newton's Con-

tributory’ Negligence \vere Erroneous, Misleading,

_ and Should Not Have Been Given.

Respondent submits that there was no evidentiary basis

for the following instructions:

“To constitute actionable negligence for which recovery

can be had again t Central Louisiaria Electric Company

and their Insurer, Michigdn Mutual Liability Company,

vou must first find negligence-on the part of CLECO and,

in Addition, you must also find that such negligence proxi-

a

94

2456 (1864). .° ‘

p Poe

_aee ia op os

mately cause the ‘death: of Louis Newton .in a natural

and unbroken sequence of event¢, Without any independent

_ intervening act by Louis Newton. Therefore, where there

occurs betWeen an original act of negligence and the final .

* accident to a person, an entirely independent and unre-

lated act/“of ‘negligence by another which ‘intervenes and

accident, then the second amd intervening negligent act is

regarded in law as the proximate cause of the accident.”

(Tr! pp. 729-130.) . fake

is of itself sufficient to a alone as the cause of the

. : !

As pointed out abovey"no negligent inter -ning act is

reveaied by the evidence, anid hence no such principle of\ law

: shonid have beer mentioned to the jury. Under these cirdumi-

stanées, this Court has held such instructjons constituted re-

versible errdér. Keyser v. ‘Hitz, 133 U.S. 138 (1890); Knicker-

_ bocker Life Insurance Company v. Foleys 205 U.S. (15 Otto)

350, (1882); Orient Mut. Ins. Co. v.

ight 6B-U.S, (1 Wall.)

n Tharp v. Mundy; 195 F.2d 987, P89 (Sth Cir. 1952),

the district judge granted a request fo

_ with contributofy negligence on the

‘structions dealing

* : at ;

The appellate court held the judgmert-must be reversed since

contributory negligence was not raised by the evidence. .

The Seventh = Court of Appeals voiced a like con--

y v. Pennsylvania Railroad Company, 356 —

clusion in. McCar

F.2d 87@ (7th Cir. 1946), at page’882.

ah BE

. “Secondly, the instruction is improper because it told

the jury that the plaintiff could not recover if his decedent

was guilty of acts of negligence that woke “his

death. As.an abstract proposition of law thet is correct,

«but there was no evidence of any independent

oe

of the flaintiff-guest.

ts of neg-:

¢

“7 . ; _o}

' ligence by the decedent that was the-sole cause of the

Oo ‘accident and his death. The: Court had instructed on a

. proposition about which there was no evidence.” (Em-

phasis —— . oe - 3

: P 6

* The action ~ the trial court herein was in direct conflict

with the authorities ‘ied “abo ind was ‘properly reverst

. by the Court of Appeais. | . ar |

ra) ~. ' : | . . ‘ ‘

/ * --.€, ‘The Trial Court Erred in Refusing to Give Respond-

S . * ents’ Charges on Sudden Emergency.

Respondents submit that the record discloses amples evi-

dence justifying an instruction to-the jury relative to sudden

emergency. Uncontradicted testimony established that cana!

- traffic was very heavy on the day. of the accident (Tr. p. 219)

Te i and, shortly before the accident, Captain Smith's tugboat with

| five barges in tow was passing an offshore boat-in the vicinity

of the towers and wires. Such evidence could give rise to an

inference that as Newton attempted to land. he was faced with

a sudden emergency not of his own making, that of the canal - }

° _. being occupied.by these vessels, and he decided not to lana.

The unmarked wires, 36 feet wige from .toy to bottom wire

(Tr. p. 426), were ‘then invisible and: the collision occurred

| as he fried to gain altitude, preparatory to circling the canal

, ®. again. (See plaintiffs’ “eqs charges 18, 19,.Tr. pp. 124- 5.)

‘The Court of Preaers conclusion on this issue was ex-

oe as a: a a

sa “We suggest, inp, that, on another trial, the -district

court take particular note of “the evidence to see whether

- an appropriate cap * on the: question of sudden emer-

’ gency Should be camel

*

ie ieee

28 ¢

' Moses ventral Louisiana Electric Company, supra, at

p. 73.

The doctrine of sudden emergency.was defined by the

€Bouisiana Supreme Court in. Snodgrass v. Centanni, 229 La. -.

915, 87 So. (2d) 127 (1956), at page 131:

“One whe suddenly finds himself in a position of im-

»-. minent peril, without sufficient time to consider and weigh

«all the circumstances or best means that may be adopted ©

to avoid an impending danger is not guilty of negligence

if he fails to adopt what subsequently and upon-reflec-

tion may appear to have been a better method, uniess the.

emergency in-which he finds himself is brought about by

his own negligence.”

Similar pronouncements. of this rule are ‘found in Chap-

man v. United States, supra; Dane v. Canal. Insurance Com-

pany, 249 La. 1038, 126 So.24.355 (1961.

"Merchants Motor Freight v. Downiiig. 997 F.2d 247 (8th.

Cir. 1955), provides an example of reversible error based

on failure to instruct on sudden émergency or Jegal excuse:

“The defendant ‘contends that since the jury found for

- the defendant they did not believe Mangert [plaintiff's

driver]. This reasoning is not sound. The jury was not

instructed on lega.excuse and care required in an emer-

gency. They may have found for the defendant under the.

instructions merely because the evidence showed without

controversy that plaintiff’s vehicle. was on the wrong side .

‘of the .road after the jackknifing and just prior to the

collision." ‘

“This court has held that a party ‘is entitled to a special -

* instruction on his theory of the case if there is evidence

ge

va

=

1 %

. >

: ‘

“aS :

ty

>

- to support it, and if a proper request has been made. dial

The court committed prejudicial error in failing to sub-

t ‘the legal excuse issue to the jury.”

oa

~ UL Berchants Motor Freight v. . Divine, Supra st Pi pp. 5B, 7

In many instances this Courf ha has held that failure. to in-.

struct the jury adequately on a concept of law vital to a liti-

gant’s case is tantamount to r€versible error. Pryor v. Wil-

liams, 2544'S. 43 (1920); Tesas & P.R. Co. v. Bourman; 212

U.S. 536 (1909); City of San Juan v. St. John’s Gas Co., 195

U.S. 510; ‘see ‘also, Daigée v. Louisiana Power & Light Co.,

247 F.2d 227 (5th Cir. 1957).

- Because the evidence warranted a charge on the question

of sudden emergency, it is urged that the suggestion by’ the

Court of Appeals that it be considered by the district court at

the time of the new ina was well- founded.

c-~

a Pye

1. “THE COURT OF APPEALS CORRECTLY REVERSED aa

THE JURY’S FINDING THAT CLECO’s‘NEGLIGENCE

w&S NOT THE PROXIMATE CAUSE OF THE ACCI-

‘DENT SINCE SUCH FINDING WAS UNSUPPORTED

BY THE EVIDENCE, AND RESULTED -FROM ERRON-

EOUS, MISLEADING INSTRUCTIONS,

A.. The Finding Was Unsupported - the Evidence.

X ‘

The legal presumption of due caré on the: part of Newton,

' discussed above, has not been rebutted by defendants, and

plaintiff submits that the -accidént was pr oximately caused

when the pilot, exercising due care, crashed, into the wires

because they were. impossible to see due to CLECO’s failure

to-mark and light the towers and wires in accordance with the

minimum. standards established by the CAA-FAA.

A proximate causal " reltjonship exists in ‘Louisiana when

the negligent act— -here CLECO’s failure to mark and light

its epaiitien-e fs a substantial factor in bringing about the

harm; another expression of ‘the test used is to determine that

the injury’ would not» have occurred but. for ‘the negligence

of the defendant. D & D Planting Co. v. Employers Casualty

Co:, 240 La. 684, 124 So.2d 908 (1960); Leonard v. Holmes

& Barnes, Ltd., 232 La. 229, 94 So.2d 241 (1957); Harvey v.

Great American a Co., 110°So, 2d 595 (La. App. 1959).

I defendant’s negligent acts are -in the nature of omis- _

sions to take. necessary action, ‘the mere. possibility that the

accident would have occurred despite- the required precautions

does not break the chain of causatioon.” Dixie Drive It Your-

self Sys..v. American Beverage Co., 242_La. 471, 137 So. (2d) .

_ 304. ( 1962), and: authorities therein cited.

CLECO's negligerice in Alling out Form ACA- 117 _

the CAA-FAA from learning the true facts of the proximity _

* ;

of these towers to Slaton Seaplane Base and Brown and Root \

Airfield, ‘thus preventing the CAA-FAA from investigating

and fequiring painting and-illumination of CLECO’s towers

and wires. This withholding of information from *the CAA-

‘FAA came about through CLECO’s employee,. Bonnette, dele-.

. gating the responsibility of filing’ the form to Woodruff, who

t.ad never been to the site and had no knowledge of ‘the pres-

ence of seaplane ‘bases and air traffic on the Intracoastal

Waterway. Bonnette was acquainted with this fact from

personal ebservation, as was Berry, another CLECO employée, _

but none of CLECO’s employees relayed this. information to -

- Woodruff, who was given the ‘task mainly because his office

and that of the. CAA-FAA were docated in the same city of

Fort Worth.

31

Ear] Stone of the FAA stated that had he been informed .

the towers and wires wére in close proximity to a seaplane

base. not listed.on the Airman’s Guide or current aeronautical

charts, he would have written the gperator of* such unlisted

airport, advising him of the proposed construction, to ascer-

tain if the operator had any recommendations. Clearly, Mr.

Stone's correspondence with Slaton would have resulted in.

Slaton's request for extra marking of the installation. Slaton

had already attempted to ‘accomplish this very thing by writ-

ing to CLECO directly ‘on March 12, 1956::(Tr. p. 488:) How-

ever, CLECO’s negligence in not revealing its location with

regard to Slaton’s base, pretermitted the taking. of such steps

by the FAA, and was a proximate cause of the accident since

otherwise the FAA would have required the towers and wires

/e be lighted. and marked.

| “In addition, the negligence of Bill Howe e, to whom: Wood-

ruff had delegated the job of filling out Form ACA- 117 ‘is |

. chargeable to CLECO, his principal. Howe either did not dis-

cover the Brown and Root’s Airfield, listed in the aeronautical

charts and Airman’s ‘Guide, or gre. ind negligently failed to

list it as the “nearest landing area.’ ’ Because Brown and Root

—is-tocated-15,000 feet: from CLECO’s towers and wires, the

FAA would classify CLECO’s installation an obstruction to |

air navigation and would recommend that it be painted’ and

lighted in accordance with FAA standards. Once. again, fail-

ure to divulge this information respecting Brown and Root’s

Airfield prevented the FAA from -stepping in and making

+ recommendations and ultimately precluded CLECO’s lighting

and painting the towers and wires so that this accident could

have been avoided, making such eter a proximate cause _

of the accident. : _ oe

_ __. that CLECO would be absolved of liability if its negligence ~~

O

B. muntemitionn ‘Relating to Proximate Cae Were Er- 2

— and Misleading. 5

It is upinoies ‘that thejusy was a misled by the

erroneous charges given. bythe trial judge, and consequently,

was under the misapprehension that CLECO’s negligence could

not be the proximate cause. Uncontestable proof of-the jurors’

bewilderment is furnighed by their subsequent return to the

courtroom for further instructions on the proximate cause

‘ (Tr.-748-9). Their confusion is understandable when it is re-

called that they were instructed regarding a nonexistent inter-

vening negligent act (Tr. p. 730), and they alse received this *

instruction: | :

“Even if you should find that CLECO was negligent, if

you also find that its.negligence had become passive or

static and that the negligence of another brought about

the conditions which caused the accident, the you (sic)

verdict should’ be e for CLECO, or that it was not negli-

_ gense or not the: proximate cause.” _f Emphasis supplied.) - ;

. (Tr. P. 731.) ,

Referring to the instructions quoted above, the Court of .

_Appeais held that reversible error had been-committed-when ~~~

Ahe jury was so charged:

“Together with the response ‘given to the questions so

‘propounded by the jury, they serve, to distort and draw

out of focus the duty which the law placed upon CLECO. |

The emphasis upon negligence as an act and upon the re-

quirement that it-‘directly’ and ‘proximately’ caused or *

‘contributed to the. accident, coupled with the instruction

had become passive or static; and if the negligence of,

another brought about the condition which caused the

accident, was calculatéd to acquit CLECO of its proven

. a:

¢

and jury accepted negligerce in maintaining the wires at a

point where it knew plaes customarily passed over and

under them without taking precautions adequate to the

Surrounding circumstances. The charge as a wholesseems —

to leave the definite impression that the passive and static

presence of the wires was not to be considered as negli-

| gence if Newton chose to ‘approach, the ‘landing under °

y= and in cloge proximity to’ them, as was the tustom.”

“(Emphasis in the original)

Moses v. Central Louisiana Electric Company, supra, at |

.© .p» 72. .

\ In this connection, the Court of Appeals cited and relied

upon Dixie Drive It Yourself Sys. ¢. Americun Ber erage Co., |

supra, which petitioners have argued was error because Dixie

was decided after the trial of the instant case; hence. the

appellate court wrongfully * yk reversed: the trial ‘court on

~ the basis of a change in- the law occurring in the interim.”

(Petition, p. 6). , A reading of this decision discloses that the

‘ Louisiana Supreme Court relied on prior jurisprudence, and

did not announce any change in the law. (See Dixie Drwe

It Yourself Sys. v. American Beverage Co., 137 So.2d at p.

306, footnote 17.) - ’ The courf-did-take” the opportunity to

comment upon ambiguous language in certain decisions, and

£3, © to conclude that “Insofar: as such a conflict exists, we have

. elected not. to follow these decisions.” Dirie Drwe It Yourself

Sys. . American Beverage Sys., 137 So.2d at p. "307. Since

voleatas have. failed to indicate what modification, of Lou-

isiana law was effected in the Dixie case, and the plain lan-

-. guage of that opinion refutes such a contention tion, respondents

peace winnie a

> = ___ urge thatthe argument is :without merit.

Further, as "petitioners: admit, yellenee upon a decision

; ‘rendered — to the judgment. in the case at-bat, has

\

been approved by this Court in Huddleston v. Dwyer, 322 U.S.

232 (1944). (Petition, p. 6) Some attempt is made to escape .

this precedent by citation of “England , v. Louisiana Board. of -

Medwal Examiners, 84°S . Ct. 461 (1964), whieh petitioners’

aver . has cast strong doubt on this practice.” * (Petition,

p. 6.) Petitioners give“no enlightenment as to the manner in

which these doubts proceed from the England ‘decision, 3 and it

is submitted that’ in a fact, such is not the case.

Asa consequence of the erroneous statement of law con-—

tained in the instructions, it was inevitable that the jury was

misled and returned a verdict contrary to the evidence ad-

_ duced. This view expressed by the Court of Appeals was emi-

nently correct, and in. harmony with holdings. of this: Court,

United States v. River Rouge: Improvements Co., 269 U.S. 411,

421 (1926); Chicago, Rock Island and Pacific R.R. Co. v.

Houston, 95 U.S. 45 Otto) 697 (1878); see also, Thacker v.

J.C. Penny Co.; 254 F.2d 672 (5th Cir. 1958); Daigle v. Lou-

mana Power & Liglit Co., 24% F.2d 227 (5th Cir: 1957). .

C. Additional Instructions Given to the dury ‘Were Er-

One hour and forty minutes after retiring for delibera-

: tions, the jury returned to request these additional’ instrue-

tions: “Re-read charge quoting negligence by-more. ican one —

_ party; Define ‘a proximate cause of thé accident.’ (Tr. p.

748.) In answer to the second query, the Court gave this

charge : : ,

re “I charge you further that in the eyes of the law negli- a

gence is actionable only when it is the proximate cause

of the injury received. That is to say, where the negli-

gence proceeds in an unbroken chain without independent

. 7 ele

?

rr ; : - eS 35 K i <

intervening cause up to the“point of causing the accident -

or: halen the accident.

“Now, that is eins as good a defavition of. proximate

cause as you can get. Itisa legally, foolproof: definition

of proximate cause. Unfortunately, it is not the type of

‘definition thet is too helpful to a Jury whe is trying to

- determine with reference to proximate cause if there is a

duty.on ihe part of a person to do a certain act, and that.

party fails to perform: that duty will result in an accident, ,

- then that failure can be said to be. the proximate cause, se,

of the accident. Now, that is another way of stating

--. imate cause.” ( — supplied.) (Tr. pp. acide

With respect to the district court’s statement thet the

__— negligence must proceed in “an unbroken chain, péspondents

Y

submitgthat such a statement of Jaw conflicts yith the prin-

’ ciple enunciated in Jackson v. Jones, 224 La. 403, 69 So.2d 729

_ (1954), to the effect that if, a person creating a danger could

or should reasonably have foreseen ‘that the accident might

occur, he is liable notwithstanding thgIntervening cause. See

also Fisher v. Norwich Union Fire ‘Insurance Society, Ltd.,

\119 So.2d 562 (La. App. 1960) ; Chavers v. Blossman: 45 So.2d

398° (La. App. 1950); Kiriluk/*. Kohn, 16 Ill. App. 2d 385,

148 N.E.2d 607 (1958); Ngfe, 9 Kansas L. Rev. 539 (1959);

Note, “Tul. AL. Rev. 419 (1€81). rae

s/ ) Mk =

. Particularly relevant to this issue is Leposki v. Railway

Erpress Agency, 297 F.2d 849 (3rd‘Cir. 1962), in which. an

erronéous instruction relative to an intervening act led to

"reversal of t ie judgment. In that case, defendant -claimed

. that the in rvening act of two boys setting fire to gasoline.

dripping/from defendant’s gasoline tank intake pipe barred

plaintiffs’ recovery: for fire damage resulting when the flames

spread to plaintiffs’ house. The court disagreed, noung that

a

cal

jury » eniil find that c= . . interveriing act was merely a

reaction: toa dangerous " dite that defendant itself cre-

-~ated.”. ki v. — Express Agency, supra, at p: 851.

"* Over: ‘and above this error in vagand to ‘the applicable

" Jaw, the district court also was mistaken in charging the jury iz

that: failure.to perform a duty “. . was another way of stating

proximate cause.” Unquestionably failure to perform a duty’

constitutes negligence, but does not denote proximate cause.

-Dixie Drive It Yourself System v. American Beverage _

supra. °

When the jury is given no assistance in its endeavor to

return a verdict in conformity with the controlling jurispru-

dence, but instead is misled and confused by ‘the trial judge’s

charges, reversible error is present, Carter v. Atlanta & St.

Andrews Bay Ry. Co., 338 U.S. 430 (1949); DeLima v. Trini-

dad Corporation, 302 F.2d 585 (2d Cir. 1962); Atkinson v.

Roth, 297 F.2d 570: (3rd .Cir. 1941). Accordingly, the judg-

nfent of the Court of Appeals herein should not be disturbed.

e

Ill. THE COURT OF APREALS CORRECTLY SET ASIDE

THE JURY VERDICT DENYING .RECOVERY FOR

_ THE DE4TH OF ROBERT,MOSES.

: "As pointed out in the foregoing, respondénts contend that

Newton's contributory negligence should not have been men-

tionéd to the jury due to the lack of evidence to substantiate

‘this instr uction. However, because this issue was submitted

to the jury, the trial judge should have given instructions re-

quested by respondents (No. 20, Tr. p. 125), stating ¢ghat any

, contributory negligence of Newton’ could not be imputed to

Moses, vack v- Travelers Insurance Co., 112 So.2d 308 (La.

App. 1959). ‘The Court of Angpat finding on this point.was ae

"the following: .

“We suggest that, on another trial, the district court take

_ particular. note of whether any contributory negligence —

on the part of decedent Moses was shown. We think that

proof on this point is meager indeed, and that it is very

doubtful from the record before us whéther Moses was -

’ chargeable with the contributory negligerice of Newton,

- if such could be proven... -

Moses v. Central Louisiana Electric Compiany, supra, at

} Pp. 73. ; wy - é °

. Respondents urge that the Court of penne holding \ was

: justified by: *the evidence, and that failure to convey Mrs.

. Moses’ theory of recovery was-error, Atkinson v. Roth, supra;

Baxter v. Ainsworth, 288 F.2d 557 (5th Cir. 1961); especially

in view of the presumption that Moses exercises due care up.

to the moment of his death, Simon v. Texas & P. Ry Co.,

supra, and the hesitance of the courts to apply assumption of

risk in airplane cases, Boise v. Payette Lumber Co. v. Larsen,

- 214 F.2d 373. (9th Cir. 1954): Montellier v. United States, 202

F.Supp. 397 (E.D. ‘N.Y. 1962); Bruce v. O’Neal Flying Service,

231 N.C. 181, 56 enn 560 (1949).

CONCLUSION |

Petitioners have argued that the reversal of the jury’s.

verdict violates the ‘Seventh Amendment, and thereby de-

‘ prives them of their trial By jury. AS‘respondents have pointed

“out, the instructions were not only .erroneous statements of

the- laws pertaining to the issues, ‘but were also so misleading

as to prevent the jury from: arriving at a fair evaluation of the

- evidence presented. Certainly the Constitutional guarantee of

a jury trial can not be ‘interpreted to mean that a jury ver- ~

°

o

No

alee a 38

dict, based on such instructions, must be binding on thé appel-

late court. Such a proposition would deny to the Courts of

Appeals: their function of reviewing decisions and reversing

- judgments for errors of law, and would allow honest mistakes

by misinformed jurors to work injustices on litigants. Sunkist

Growers v. Winckler & Smith Citrus Pr. Co., 370 US. 19

(1962); Burdell v. Denig, 92 U.S. (2 Otto) 716 (1876).-

sd

The decision of the Court of Appeals herein, being fully

supported by the jurisprudence of this Court, is corréct, and

should not be reviewed. It is’ ‘respectfully submitted that the

- ‘petition for certiorari should not, be’ denied. & |

aoa vshuianend, ;

O° : ies ‘H. ALVA BRUMFIELD |

' SYLVIA ROBERTS

HERBERT O’NIELL

Attorneys for Respondents.

4 ye

| ie » :

ae Pines

39

CERTIFICATE °

r hereby certify’ that copies of the foregoing Brief in

. Opposition to Petition for Certiorari -have been ‘served on /

Alvin R. Christovich, Sr., 1815 American: Bank. Building, New

/ Offleans, Louisiana‘ ‘John B. Baus, 2% 225 Baronne Street, New.

- Orleans, Louisiana; David W. Robinson, 137 St. Ferdinand

Street, Bator Rouge, . Louisiana; W. Ford Reese, Richard cn

Baldwin, and Thomas J. Wyllie, of the firm of ‘Adams and

Reese, 847 National Bank of Commerce Building, New Or-

leans, Louisiana; Jacob Landry, and Jack Cousin, of the firm

of: Landry, Watkins, Cousin: & Bonin, 211 East Main Street, ©

New Iberia, Louisiana by placing same in the United States

Mail, postage prepaid.

Baton Rouge, L Louisiana, sags day of

1964. , :

ee

% *