# Petition for Writ of Certiorari — Glenn L. Martin Co. v. Northwest Airlines, Inc.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0321%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1956
- **Citation:** 350 U.S. 937

## Text

¥IL DD

NOV 25 1955

GLENN L. MARTIN COMPANY,
Petitioner,
Vv.
NORTHWEST AIRLINES, INC.,
THE BRITISH AVIATION INSURANCE COMPANY , LTD.,
THE INSTITUTE OF LONDON UNDERWRITERS,
R. WALKER ROYLANCE and A. J. WHITTALL

(For the Subscribing Underwriting
Members of Lloyd’s, London),

FIDELITY & CASUALTY COMPANY OF NEW YORK,
Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals
For the Sixth Circuit. -

C. M. Horn,
Tuomas V. Koyxxa,
Epwarp D. Crocker,
1144 Union Commerce Building,
Cleveland 14, Ohio,

1759 Union Commerce Building,
Cleveland 14, Ohio,

Counsel for Petitioner.

November 23, 1955.
——————————————————_—_—_—_______

THE GATES LEGAL PUBLISHING CO., CLEVELAND, ONIO—MAIN 1.5647

TABLE OF CONTENTS.

PETITION FoR Writ oF CERTIORARI _____ 1
IRIN Sialic aired 2 BAe MO SINTER IE nt 2
RS SE aa See CaS Ae in 2
Commun Fre i 3
Vonenat. Ruee Iweewep ........... =... 4
I ii i i ort 4
—The Trial—It Was a Long One ___._____ > 5
—Jury Decided for Martin _....._._.___________ 5
—Court of Appeals Reversed 6
—This is How Case Arose _._._________ = 6
—Court of Appeals Applied Wrong Standard_._.. 8

(1) Contributory Negligence and Assumption
of Risk Both Applicable _.....___._____ 8

(2) Ruling Below Will Have Important Con-
sequences on Care Owed by Airlines... 9

—(a) Northwest Did Not Just Buy a

Plane—It Participated in Deciding
How It Should Be Built ___._ 9

—(b) Northwest Proved Defect Was
Open and Obvious ____________ 10
REASONS FOR ALLOWANCE OF Writ ____ 12

I. Court BeLow Has EstasiisHED DANGEROUSLY
Lax STANDARDS OF CARE FoR AIRLINES ____ | 12

1. Court Fastened Improper Condition on Law
of Contributory Negligence _... 12

2. Court Ruled Airline Need Not Supply
g maown Als t Gety- 13
=
nN
LS)

II. Court Appirep Improper STANDARD oF RE-
view—It INvapED FuNcTION oF TRIAL JUDGE
RCS SPEER ACERS Sen a ne

1. Court Wiped Out Assumption of Risk Except
hn at

2. Court Reversed 4-Months Trial for Error
Shown to Be Harmless __._._.-__

—(a) Record Shows Jury Did Not Decide
on Issues on Which Court Reversed

—(b) Court Should Have Applied Contract
Standard, Not Common Law Stand-

3. Lack of Objection Required by Federal Rule
I ies

III. Court SHoutp Requrre ADHERENCE TO EN
Banc ProcepURE PRESCRIBED IN WESTERN Pa-
SERIES SS fees ere rag

EERSTE pS PREF STOR Vai aie Oey oh er
APPENDIX:

Memorandum Opinion of the United States Dis-
trict Court for the Northern District of Ohio,
I a

Opinion of the United States Court of Appeals for
Re PR

Judgment of the United States Court of Appeals
BL gS | See ee

Order of the Court of Appeals Denying Rehearing

Order of the Court of Appeals Denying Motion to
-__SROREL STOR RE SAE a eS ESN

17

TABLE OF AUTHORITIES.

Cases.

Binder v. The Youngstown Municipal Ry. Co. (1932),
125 O. 8.198, 190 N. &. 600 .................. 16

Centrello v. Basky (1955), 164 O. S. 41, 128 N. E.
OD aie acini caste arent lise Sse pai Hae 16

Gibson, Victor D., v. Lockheed Aircraft Service, Inc.,
No. 42, October Term 1955, certiorari granted,

i I TI scott cachceccbepciigncheacabcsuta abvatseaceiciaal 3, 19
Marks v. Nambil Realty Co., Inc. (1927), 245 N. Y.
BE Sits MEE OI enn costs sds nea acsapiniganauncipimanetie 13
Western Pacific Railroad Corp. v. Western Pacific
Railroad Co. (1953), 345 U. S. 247 ___---__- 2, 4, 20
Statutes
RS AR Tyo UE apn trier enon EET Serr a 3
eT Ges ND © niceties wncmiammineitns 3
Federal Rules of Civil Procedure.

BRE GI sceecnsscind dineiisanpes mesa destecenetinpilicninabeesenaieiaiil 4, 19, 20

In the Supreme Court of the United States

OCTOBER TERM, 1955.

Beneiasctres

GLENN L. MARTIN COMPANY,
Petitioner,
Vv.

NORTHWEST AIRLINES, INC.,
THE BRITISH AVIATION INSURANCE COMPANY, LTD.,
THE INSTITUTE OF LONDON UNDERWRITERS,
R. WALKER ROYLANCE and A. J. WHITTALL
(For the Subscribing Underwriting
Members of Lloyd’s, London),

FIDELITY & CASUALTY COMPANY OF NEW YORK,
Respondents.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Chief Justice and the Associate
Justices of the Supreme Court of the United States:

Petitioner, Glenn L. Martin Company, prays that a
writ of certiorari issue to the United States Court of Ap-
peals for the Sixth Circuit to review the judgment of that
court in cause No. 12,130 wherein that court reversed
judgments entered by the District Court upon jury ver-
dicts.

2
OPINIONS BELOW.

The opinions and orders below appear:

Opinion of the District Court, Judge Emerich B. Freed
of the Northern District of Ohio, overruling the
motion for new trial of Northwest Airlines, Inc.
and the several insurance companies who were
plaintiffs with it (and are respondents here), has
not been reported. It is printed in the appendix
hereto, page 23.

Opinion of the United States Court of Appeals for the
Sixth Circuit (Judge Stewart writing, Judge
Simons concurring, and Judge McAllister dis-
senting), reversing the judgments of the District
Court, is in the appendix, page 24, and is re-
ported as 224 F. 2d 120.

Judgment of the Court of Appeals is in the appendix,
page 46.

Order of the Court of Appeals (Judges Stewart and
Simons concurring and Judge McAllister dissent-
ing) denying petitioner’s application for rehear-
ing, is in the appendix, page 46.

Order of the Court of Appeals denying petitioner’s
motion to vacate for failure to consider petition-
er’s application for rehearing en banc in the man-
ner required by Western Pacific Railroad Corp.
v. Western Pacific Railroad Co. (1953), 345 U.S.
247, is in the appendix, page 47.

JURISDICTION.

The judgment presented for review is dated and was
entered May 31, 1955; petition for rehearing was denied
August 29, 1955; motion to vacate and rehear en banc
was denied October 3, 1955.

3

This Court has jurisdiction to review under 28 U. S. C.
§ 1254(1), upon petition for certiorari filed within the 90
days prescribed by 28 U.S. C. § 2101(c).

QUESTIONS PRESENTED.

This case presents the questions:

1. Whether the majority in the Court of Appeals has
established a dangerously lax standard of care for
commercial airlines by holding, as a matter of law:
(a) That an airline, whose employees inspect an

airplane, is exonerated from all responsibility
for a crash claimed to have resulted from a
defect which the airline’s evidence shows is
open and obvious;

(b) That an airline need not supply a passenger
plane with a known safety device.

2. Whether the majority in the Court of Appeals, in
reversing the District Judge for charging on con-
tributory negligence and assumption of risk, ap-
plied an erroneous standard of review.

3. Whether an airplane manufacturer’s liability to
an airline purchasing aircraft built pursuant tc
contract specifying the standards governing design
and construction is to be measured by the abstract
standard of common law negligence or by the
specific standards of the contract.

4. Whether a Court of Appeals may reverse the Dis-
trict Court for giving a charge in absence of the
objection required by Rule 51 of the Federal Rules
of Civil Procedure. This is the question involved
in Victor D. Gibson v. Lockheed Aircraft Service,
Inc., No. 42 on this Court’s docket, wherein this
Court granted certiorari. 349 U. S. 943.

4

5. Whether a Court of Appeals without prior an-
nouncement of its practice may, consistently with
the requirement of Western Pacific Railroad Corp.
v. Western Pacific Railroad Co. (1953), 345 U. S.
247, rule upon a request for rehearing en banc by
vote alone of the panel which heard the case.

FEDERAL RULE INVOLVED.
Rule 51 of the Federai Rules of Civil Procedure says:

“At the close of the evidence or at such earlier
time during the trial as the court reasonably directs,
any party may file written requests that the court in-
struct the jury on the law as set forth in the requests.
The court shall inform counsel of its proposed action
upon the requests prior to their arguments to the jury,
but the court shall instruct the jury after the argu-
ments are completed. No party may assign as error
the giving or the failure to give an instruction unless
he objects thereto before the jury retires to consider
its verdict, stating distinctly the matter to which he
objects and the grounds of his objection. Opportunity
shall be given to make the objection out of the hearing
of the jury.”

STATEMENT OF CASE.
This case arose out of the crash of an airplane.

Petitioner, Glenn L. Martin Company, manufactured
the plane.

Respondent, Northwest Airlines, Inc., plaintiff below,
bought it.

The plane was one of a fleet of 25 like two-engine
planes manufactured by Martin under contract for North-
west.

5
—The Trial—It Was a Long One.

The suit was brought by Northwest and its insurers
on diversity grounds. They alleged Martin was negligent
in the design of the plane, material used, workmanship, in-
spection and testing. (6a.)' Recovery was sought (7a-9a):

(a) For the value of the plane lost;

(b) For certain workmen’s compensation claims paid;

(c) For loss of use of four planes;

(d) For loss of use of the same four planes at a later
date.

The case took four months to try.

It was tried to a jury.

The trial commenced November 6, 1952. For three
and a half months evidence was heard. The next year, on
February 19, 1953, the court charged. The jury held the
case 14 days. It returned on March 5, 1953.

—Jury Decided for Martin.

The jury returned four separate verdicts, one on each
of the four claims of damage asserted.

Each verdict was for defendant Martin, and four
judgments were entered thereon. (887a-888a.)

The District Court, Judge Emerich B. Freed of the
Northern District of Ohio, familiar with the evidence and
the issues, overruled motion for new trial. He concluded
(891a):

“it would be a gross abuse of the Court’s function and
power to set aside a verdict reached by the twelve
jurors in this case.”

1The Record printed for the use of the Sixth Circuit is in
Cn form; this and other like references are to that Ap-
pendix.

i i

SE GEM RL STARZ Eee

SS

6
—Court of Appeals Reversed.

The Court of Appeals, dividing two to one, reversed.
All the judges held the question of Martin’s negligence
was correctly submitted to the jury; the majority reversed
on the ground issues of contributory negligence and as-
sumption of risk should not have been submitted to the
jury. As will be seen, the majority reached this conclusion
by (1) applying an incorrect standard of review, and (2)
relaxing the standard of care demanded of commercial

In view of the holding of the Court of Appeals, and
the verdicts returned by the jury, the circumstances of the
accident are not presently material. However, it will help

bring into focus the questions which arise to note what
happened.

—This is How Case Arose.

The first of the airplanes was delivered to Northwest
in August, 1947. (135a.)

About a year later, in the late afternoon of August
29, 1948, one of these planes, known as No. 44, on a flight
from Chicago to Minneapolis, was flown into a fearful
thunderstorm, described as the “worst” ever experienced.
(135a-143a, 20b, 289b, 465b, 487b, 503b, 607b.)

The plane lost a wing.

It crashed.

It hit the earth near Fountain City, Wisconsin, a few
miles upstream and across the Mississippi from Winona,
Minnesota.

All aboard perished.

After the crash, investigation disclosed that the wing
had broken at a point where the outer section of the wing

was joined to the inner section by means of a structure
known as a wedge.

7

At about the same time, and before anything was
known of the crash of No. 44, another plane, No. 42, fol-
lowing the first one by 33 minutes, encountered the same
storm area, but under conditions of lessened turbulence.
(795a-796a.) On that flight, approaching the Mississippi,
both the pilot and a Civil Aeronautics Administration in-
spector flying as a passenger heard a loud report. (152a.)
Both, at first, attributed this to the dropping of the landing
gear. The landing gear, however, proved to be in place,
and locked. The pilot concluded the sound was caused by
the closing of a by-pass valve; the inspector thought a
part of the cowling might have blown off. (152a.)

The plane continued on to Minneapolis. It landed
there safely.

Northwest then dispatched the plane on a flight to
Duluth and back. That flight was uneventful except that
the pilot found it required some extra “trim tab” to main-
tain the plane in level flight. (156a.)

The pilot reported this on his return.

Then he started for home.

But, reflecting on the matter, he left his car, returned
to the ramp and asked that inspection be made of the
plane. (157a.)

It was found that there was a complete break in the
wing spar.

The other planes of the fleet were grounded. (167a.)

Eleven other planes were found to have fatigue cracks
in the same wing joint. (953a.)

Whether Martin was at fault was the subject of much
evidence—pro and con. That issue, all judges agreed, was
properly submitted to the jury. The court found no error
in that regard.

However, the majority held the trial judge should
not have submitted to the jury the issues (a) whether

Northwest was negligent, (b) whether Northwest should
have supplied the plane lost in the thunderstorm with
radar, and (c) whether Northwest had assumed the risk.

—Court of Appeals Applied Wrong Standard.

The conclusion the majority reached is incredible.

The result, if the ruling below stands, is that:

(a) A commercial airline, as a matter of law, shares
no responsibility for a crash claimed to have re-
sulted from a defect even though its employees
inspect, and even though its evidence says the
defect is open and obvious.

(b) A commercial airline, as a matter of law, need
not install radar, a known safety device.

(c) If the employees of an airline who inspect a plane
say they did not see a defect, the airline, as a mat-
ter of law, does not assume the risk of a hazard
the evidence says is open and obvious.

Before turning to these points it will be well to note
why contributory negligence and assumption of risk both
play a part in this lawsuit.

(1) Contributory Negligence and Assumption of Risk

Both Applicable.

All agree—petitioner, respondents, the trial judge,
and the Court of Appeals—that (Appendix, pp. 31, 35):

1. Contributory negligence exists if the hazard is dis-

coverable by exercise of ordinary care;

2. Assumption of risk exists if the hazard is known
or is so obvious that the party must be taken to
have known.

It also is agreed that under Wisconsin law—which
controlled with respect to the plane lost in the thunder-

storm—contributory negligence is a defense pro tanto only
until it equals or exceeds the negligence of the other party;
assumption of risk is a complete defense.

(2) Ruling Below Will Have Important Consequences on
Care Owed by Airlines.

The sweep of the ruling below, and its effect on the
standard of care demanded of airlines, will become ap-
parent from the character of evidence the majority held
is not enough to go to the jury.

The great bulk of the evidence went to the question
whether there was any negligence on Martin’s part. The
jury, as will be seen, decided there was none.

But on the present points, on which the Court of
Appeals ruled as a matter of law, the evidence comprises
only a few pages. It is so short that substantially all of it
is set forth in this petition.

There are two points to note:

—(a) Northwest Did Not Just Buy a Plane—It Participated in Deciding
Hew It Should Be Built.

This was not—most emphatically it was not—the pur-
chase of an automobile from the showroom floor.

It was a cooperative venture to produce a plane built
under the eye of the buyer pursuant to precise specifica-
tions.

Northwest watched the day-by-day construction. It
checked what was done. It maintained a staff of engineers,
inspectors and other technical personnel at the Martin
plant for that purpose. (679b-701b.) Its engineers studied
and approved the design as it affected every part of the
plane before it was accepted. (703b, 712b.) They re-
viewed the drawings; they watched the wing spar as-
sembly as it was built and as it was installed in the plane

10

\(335a); they watched the tests made; they reported to
their head office that the plane was “the niost exten-
sively tested airplane in commercial aviation history”
(724b-725b).

« - The point is, Northwest had close—intimately close—
knowledge of everything that went into the plane. North-
west’s engineers, the majority conceded, “were in a po-
sition to recommend and actually did recommend various
changes in design and manufacture.” (Appendix, p. 32.)

Next—

—(b) Northwest Proved Defect Was Open and Obvious.

Northwest produced an independent witness—not in
the employ of either party—Dr. Louis Bryant Tuckerman,
to establish the character of the asserted defect. He said it
was open axd obvious. He spoke with the authority of
13 years on ti.c faculty of physics at the University of
Nebraska, and 30 vears with the National Bureau of
Standards. (208a-209a.) He had served on aircraft design
committees for the Army and Navy and on aircraft struc-
tures committees of the National Advisory Counsel for
Aeronautics. (210a.) He had had much to do with aircraft
structures; as he put it, “The major part of my work has
been associated with airplane and other aircraft struc-
tures” (211a).

In view of the issues, and the learning Dr. Tuckerman
brought to the case, his was a powerful voice.

This is what Dr. Tuckerman said—under examination
by counsel for Northwest (239a-240a):

“Q. Now, going back to this design, Doctor, was
this design in the respects in which you have stated it
was dangerous and defective—Were those matters of
design such as to require great and discriminating

il

knowledge and understanding, or were they open and
obvious to any one who had any engineering knowl-
edge whatever? |

A. I don’t know what you mean by ‘any knowl-
edge whatever,’ but any competent engineer they
were obvious to.

Q. And were they such as to require long, de-
tailed study, or were they obvious so that one might
know almost at first blush, on first examination?

A. When I looked at it I said, ‘Who’—never mind
that. When I looked at it I said that is not what it
should be. The moment I saw that with the rough
tool marks and the sharp corners I said it was not
what it should be. I didn’t require five minutes look-
ing at that t» decide it was not what it should be.

Q. What would you say from the facts known
since 1945, was it obvious and visible that an airplane
wing hung or attached to that fitting would eventually
have fatigue cracks in the fitting?

A. Not knowing the loads which would come on
it, it could not be said that way, but if the rest of the
plane were, what shall I say—economically designed
to give the light structure, then it was obvious that it
would. That is, if this was designed to build a reason-
ably light wing, then this was dangerous.

Q. And was that true, obviously true, in 1945 as
in 1948?

A. It was.

Q. And is it equally true that it was plainly fore-
seeable in 1945 that if fatigue cracks developed in that
fitting, that those fatigue cracks would proceed and
eventually cause a fracture of the member and a loss
of the wing?

A. It was.

Q. As a matter of fact, with respect to a member
of that kind did it then, or does it now, require any
fatigue testing by you or any other competent design-
ing engineer to see and observe and determine the

12
location of that weak spot, that danger spot in that
fitting?
A. No.”

Surely the law will not say to any man, much less an
airline, that he may ignore what his evidence says is open
and obvious.

REASONS FOR ALLOWANCE OF WRIT.
The Court should grant the writ because:

I. COURT BELOW HAS ESTABLISHED DANGEROUS-
LY LAX STANDARDS OF CARE FOR AIRLINES.

The majority has laid down law dangerous in two
respects:

1. Court Fastened Improper Condition
On Law of Contributory Negligence.

Northwest examined and inspected the planes
throughout construction.

It maintained a staff at the Martin plant for that very
purpose.

But, said the Court of Appeals, Northwest was not
chargeable with anything so discoverable, even if the haz-
ard was—as Dr. Tuckerman said it was—open and ob-
vious.

Why?

Because, the majority ruled (Appendix, p. 38):

“The fact that inspections were made in no way in-
creased the risk of harm.”

Thus, even a careless inspection frees the airline.

The short answer is the answer Judge Cardozo gave to
the argumenat—the same argument that the majority in
the Court of Appeals here espoused—that one may escape

13

the consequences of his acts if he in no way increases the
danger. Judge Cardozo’s quiet answer in Marks v. Nambil
Realty Co., Inc. (1927), 245 N. Y. 256, 157 N. E. 129, was
(p. 130):
“We cannot yield assent to this restriction of the field
of duty.”

The majority in the court below ruled the failure of
the four Northwest engineers, who saw the part installed,
to see what Dr. Tuckerman said was obvious, “in no way
increased the risk of harm.” (Appendix, p. 38.) But,
the point is, as Judge Cardozo put it in Marks (157 N. E.
at 130), one “does not have to prove” that “what was
wrong has been made worse.” On the contrary (p. 130):

“His case is made out when it appears that by reason of
such negligence what was wrong is still wrong, though
prudence would have made it right.”

But the Court of Appeals ruled (1) even if the air-
line inspected, (2) even if the jury believed the evidence
of the airline’s witness, Dr. Tuckerman, that the danger
was open and obvious, the airline, as a matter of law,
shares no responsibility because what it did made the con-
dition no worse.

2. Court Ruled Airline Need Not
Supply Known Aid to Safety.

Prior to the accident Northwest had “studied the
radar question.” (107a.)

Northwest decided not to install radar.

One of its reasons was it would be accurate only 95%
of the time. (122a.)

The Court of Appeals ruled, as a matter of law, that
Northwest was not obligated to supply the plane lost in
the thunderstorm with radar.

14

The Court’s reason was that “satisfactory” radar was
not then commercially available (Appendix, p. 42) even

though:
(a) Northwest’s pilots had “flown aircraft equipped
with two types of radar” (107a);

(b) “The equipment that was then available” had
been tested by Northwest (107a);

(c) Northwest’s communications engineer conceded
“radar equipment that was available back prior to
August of 1948 [when the plane was engulfed by
the thunderstorm], would have been of assist-
ance” (770a); and

(d) Northwest’s superintendent of meteorology,
speaking as of August 1948, confessed radar “‘cer-
tainly would be of assistance in circumnavigating
a thunderstorm area” (127a).

Northwest, in telling why it did not install radar, did

not even assign as a reason that it was not available.
(107a-108a.)

Under such circumstances:

1. Is it to be ruled as a matter of law that an airline
need not supply a known safety device?

2. Is it for the court to say radar was not available
when Northwest’s pilots had flown with it?

3. Is it for the court to say radar was not “satisfac-
tory’? Or is it for the jury to consider whether
ordinary care required the use of a known safety
device even if, as claimed by Northwest, it would
be effective only 95% of the time?

ae

15

II. COURT APPLIED IMPROPER STANDARD OF
REVIEW—IT INVADED FUNCTION OF
TRIAL JUDGE AND JURY.

The trial judge was so certain of his conclusion that
' the issues were for the jury that he said “it would be a
gross abuse” to hold otherwise. (891a.)
The Court of Appeals ruled otherwise—because it
applied the wrong standard. It invaded the province of
the trial judge and the jury.

1. Court Wiped Out Assumption
Of Risk Except on Confession.

To take the issue from the jury the court laid down
an astonishing rule of law.

The court used the failure of the four Northwest
engineers who watched the installation, to see what Dr.
Tuckerman said was obvious, as reason why the jury
should not have been instructed on the point.

The majority said (Appendix, p. 34):

“The evidence that Northwest’s representatives did
insist upon changes whenever they saw any reason to
be dissatisfied leads to the conclusion, at least by
negative implication, that they saw no reason to
criticize the wing joint. They had no reason what-
ever not to object to anything they might regard as
hazardous, and, in fact, had been expressly instructed
by Northwest to insist upon any changes they thought
would increase the safety of the airplanes.

* * * There is no evidence that the danger
lurking in the wing joint was so obvious to those
Northwest representatives who actually did observe
it that they must be taken to have appreciated that
danger.” (The emphasis is the court’s.)

The court was acting as jury.

16

Forgetful of the proper role of court and jury, the
court drew inferences—which, if to se drawn at all—only
the jury could draw.

The court’s ruling that, since Northwest’s engineers
did not complain, they must not have known, sterilizes
assumption of risk as a living rule of law.

If the court is right, how can assumption of risk exist
in any case, short of confession by the party?

If the matter was as open and obvious as Dr. Tucker-
man said it was, and if the jury elected to believe him, as it
had a right to do, it was for the jury, not the reviewing
court, to say whether the condition was such that North-
west must be taken to have known.

2. Court Reversed 4-Months Trial
For Error Shown to Be Harmless.

The Court of Appeals has undone a long jury trial for
error the record shows did not affect the jury’s verdicts.

So important do many courts consider it that jury
verdicts be not lightly set aside, that if one issue adequate
to sustain the verdict is correctly submitted the verdict
will not be set aside even if there is error on another
issue. It will, as a matter of law, be presumed the jury
found on the issue which was correctly submitted—as in
this case, negligence. This is the rule in Ohio. Binder v.
The Youngstown Municipal Ry. Co. (1932), 125 O. S. 193,
180 N. E. 899; Centrello v. Basky (1955), 164 O. S. 41, 128
N. E. 2d 80. It is known as the “two-issue rule.”

Application of the Ohio rule would have required
affirmance of the judgments of the District Court.

But there is no need to rely on presumption.

17

—(a) Record Shows Jury Did Not Decide
On Issues on Which Court Reversed.

The jury returned four separate verdicts.

The radar issue, which the Court of Appeals held
should not have been submitted to the jury, in no way
affected the result. That issue related solely to the plane
lost in the thunderstorm. It in no way bore on the verdicts
relating to the other planes.

But, all verdicts were the same,—for defendant Mar-
tin. The record thus affirmatively shows the radar issue
on which the Court of Appeals reversed played no part in
the decision.

And, since contributory negligence was a pro tanto
defense only, unless it equalled or exceeded the negligence
of the other party, the jury, had it reached the issue of con-
tributory negligence, could have found it only in minor
degree. This would have diminished the recovery. But
that is not what happened; on the contrary the verdict was
for Martin.

The errors, if they were such, were harmless for the
additional reason that the Court of Appeals, had it applied
the proper standard—as next will be pointed out—would
have held Martin not liable in any event.

—(b) Court Should Have Applied Contract

Standard, Not Common Law Standard.

The parties by contract specified Martin’s obligations
with respect to (1) design, (2) material, (3) workman-
ship, (4) inspection and testing—the very grounds of
negligence assigned. On all these points the plane was to

meet the standards prescribed by the Civil Air Regulations
and by detailed specifications made part of the contract.
(906a-921a. )

Be

These standards the planes fully met.

There is no evidence to the contrary.

The Court of Appeals measured Martin’s liability by
the common law standard of ordinary care.

But, was liability to be tested by that abstract stand-
ard?

Was it not to be tested by the specific standards the
parties agreed to in the contract?

If it was, then there was nothing to submit to the
jury because there was no evidence Martin in any respect
fell short of the requirements specified in the contract.

Northwest admits as much—for it sued, not for
breach, but for asserted negligence.

The contract, to be sure, specified (902a):

“Nothing contained in this Contract, however,
shall relieve Martin from liability imposed on it by
law for its negligence, if any * * *.”

What liability does the law impose when the parties
expressly agree on what is to be done?

Is negligence in such case to be measured by the
abstract rule of the common law or by the standard of what
was to be done as specified in the contract?

This is a question of obvious importance to airlines
and manufacturers of aircraft which customarily operate
‘under such contracts, as well as to all industries where
products are manufactured to precise standards agreed to
by manufacturer and purchaser.

This Court has never ruled on the question.

Here, if the contract standards control, there was
nothing to go to the jury, and in view of the verdicts, any
error in the charge was harmless.

19

3. Lack of Objection Required by
Federal Rule 51 Bars Reversal.

The question involved in Victor D. Gibson v. Lock-
heed Aircraft Service, Inc., No. 42, October Term 1955,
where this Court granted certiorari, 349 U. S. 943, arises
also in this case.

Rule 51 of the Federal Rules of Civil Procedure says:

“No party may assign as error the giving or the failure
to give an instruction unless he objects thereto before
the jury retires to consider its verdict, stating dis-
tinctly the matter to which he objects and the grounds
of his objection.”

Here, as in Gibson, Northwest made known its posi-
tion with respect to charges requested of the court. North-
west’s position was the court should not charge on the
subjects on which the Court of Appeals has now reversed.
(826a-827a, 830a-833a.) In the light of the discussion then
had, Martin subsequently submitted revised requests, in-
cluding No. 12 on assumption of risk (837a-838a) and No.
13 on contributory negligence and radar. (838a-841a.)

Northwest said nothing.

The court then specified which of the requested
charges would be given and which refused. As to the
charges here in question the court ruled (842a):

“No. 12 will be given with some changes; No. 13

will be given in its entirety with the mere change of
the introductory sentence.”

Again Northwest remained silent.

At the close of the court’s charge, in response to the
court’s request that counsel (878a) “record such excep-
tions as you care to note or that you feel are justified,” the
following occurred (878a):

“Mr. Harrison [Counsel for Northwest]: Your
Honor, on behalf of the plaintiffs we have no objec-

20

tions or exceptions, except with reference to those
matters which we have already presented to the Court
and on which you have already made and announced

your rulings.
The Court: As to the requested charges?
Mr. Harrison: Yes.
Mr. Crocker [Counsel for Martin]: Your Honor,
we have nothing other than that. It just occurred to
me whether it was necessary for us to take these up
again, on the requests.
The Court: No, the record will show, gentlemen,
that whatever objections or exceptions you have
noted to the Court’s refusal to charge as you requested
will be regarded as having been made at this time.”
The record thus shows that although exception was
recorded to the “refusal to charge,” nothing was said with
respect to charges which the court did give on which the
Court of Appeals has now reversed. The mandatory
language of Rule 51 says the party must not only state
whether he “objects thereto,” but also state:
“distinctly the matter to which he objects and the

grounds of his objection.”

For all the record shows, Northwest, after the collo-
quy with the court, decided to let the court charge, and
speculate on the chances with the jury.

Ill. COURT SHOULD REQUIRE ADHERENCE TO
EN BANC PROCEDURE PRESCRIBED IN
WESTERN PACIFIC CASE.

In Western Pacific Railroad Corp. v. Western Pacific
Railroad Co. (1953), 345 U. S. 247, this Court outlined
the en banc procedure it expected courts of appeals to
follow. The Court considered it “essential” that (p. 260):

“court, and the litigants who appear before it, under-

stand the practice—whatever it may be—whereby
the court convenes itself en banc.”

a

7"

21
The Court said (p. 267):

“We hold that the statute does not compel the court to
adopt any particular procedure governing the exer-
cise of the power; but whatever the procedure which
is adopted, it should be clearly explained, so that the
members of the court and litigants in the court may
become thoroughly familiar with it * * *.”

The Sixth Circuit, when the request for rehearing
en banc was made on June 20, 1955, had said nothing on
the subject. When it appeared from the order overruling
the request for rehearing that the en banc request had not
even been brought to the attention of the other judges,
petitioner brought the matter to the court’s attention on
September 14, 1955, by motion to vacate. In denying that
request, the Court of Appeals said in its order of October
3, 1955 (Appendix, p. 47):

“In the order of this court of August 12, 1955,
denying a motion to reconsider in National Labor Re-
lations Board v. Cambria Clay Products Company, No.
12072, it was stated: ‘And the court being of the opin-
ion that the uniform procedure heretofore followed by
the court should not be departed from, namely, that in
cases where the appeal was heard, and the judgment or
order complained of was decided, by a regular Court
consisting of three judges only, a petition to rehear
or to reconsider should not be considered by the Court
en banc.’ The uniform procedure there made public
was established after full consideration by a majority
of the Circuit Judges of this Circuit in active service.”

The order in the Cambria case to which the Court re-
ferred has not even been published.

Burial of the court’s practice on the subject in a
memorandum denial of rehearing can scarcely be what
this Court expected when it directed that the en banc pro-
cedure (345 U. S. at p. 267):

q

22

“be clearly explained, so that the members of the
court and litigants in the court may become thor-
oughly familiar with it * * *.”

It is not at all unlikely that the pooled experience of
all of the judges of the Sixth Circuit, had it been brought
to bear on this case, would have rejected the principles
which here have been made law by one vote.

CONCLUSION.
This case raises questions which need, and should
have, the attention of this Court.
The writ should issue.
Respectfully submitted,
C. M. Horn,
Tuomas V. Koyxkka,
Epwarp D. Crocker,
1144 Union Commerce Building,
Cleveland 14, Ohio,
Victor DeMarco,
Hucu Ca.kIns,

1759 Union Commerce Building,
Cleveland 14, Ohio,

Counsel for Petitioner.
November 23, 1955.

23
APPENDIX.

MEMORANDUM OPIMION OF THE UNITED STATES
DISTRICT COUR’ FOR THE NORTHERN DIS-
TRICT OF OHIO, EASTERN DIVISION.

(Filed July 23, 1953.)
Freep, J.:

Ihave scrutinized the contentions raised by the motion
for new trial.

They are addressed, in the main, to the claim that
the verdict of the jury was against the overwhelming
weight of the evidence. A court is warranted in setting
aside the finding of a jury if it appears that it is manifestly
and palpably in conflict with the evidence and that justice
clearly demands it. Aetna Casualty & Surety Co. v. Yeatts,
122 F. 2d 350 (1941). The test is not whether the Court
would have reached a different conclusion had the case
been presented without the intervention of a jury. After
careful deliberation, I am compelled to arrive at the de-
cision that it would be a gross abuse of the Court’s function
and power to set aside a verdict reached by the twelve
jurors in this case.

AN the other assignments of error were argued at
great length in the course of the trial and the record dis-
closes the reasons for the ruling made in each instance.
All the authorities were then carefully weighed and since
then nothing has been presented to alter my view. No
purpose would be served by an extended memorandum re-
stating my opinion in respect of questions pertaining to
evidence and the proper instruction to the jury.

The motion for new trial will be overruled.

24

OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT.
(Filed May 31, 1955.)

Before Srmons, Chief Judge, MCALLISTER and STEw-
art, Circuit Judges. .

Srewart, Circuit Judge. This was an action for dam-
ages brought by appellant, hereinafter referred to as
“Northwest,” a commercial airline company, against ap-
pellee, hereinafter referred to as “Martin,” a manufacturer
of airplanes.’ The action was based upon Martin’s alleged
negligence in the design and manufacture of five “Model
202” airplanes purchased by Northwest, resulting in the
loss of one of the planes and the temporary loss of use of
four others. No questions of warranty are involved, since
the purchase agreement in effect limited Martin’s liability
to that imposed on it by law for its negligence.

The trial lasted approximately three months. The jury
deliberated for ten days before returning general verdicts
in favor of Martin.? The appendices on appeal number
more thantwo thousand pages. We are told that the case
is one of great importance not only because of its imme-
diate impact upon the rights and liabilities of the parties,
but perhaps even more so because of its supposed impact
upon the airline and aircraft industries, and the relation-
ships between them. Yet the case remains a negligence
action, involving for the most part issues of fact, prolix

1 Certain insurance company subrogees were later joined as
plaintiffs.

2 The jury returned four separate verdicts, covering (a) the
claim for damages due to the destruction of one plane; (b) the
claim for reimbursement for Workmen’s Compensation payments
made by reason of the death of the members of the crew of that
plane; (c) the claim for damages for loss of use of the other four
airplanes prior to March 25, 1949; (d) the claim for damages for
loss of use of those airplanes after April 14, 1949.

CED ART CS OATES TREATS RE

25

and technical though they be. From this thick overlay of
factual controversy emerge familiar questions of ordinary
care, proximate cause, contributory negligence and as-
sumption of risk.

Martin is a Maryland corporation, with its plant and
offices near Baltimore. It has been engaged in the design
and manufacture of airplanes since 1909. Throughout
World War II Martin devoted its efforts completely to the
designing and building of military planes, as did the entire
aircraft industry. It became apparent in the closing days
of the war that the post-war period would provide a large
potential market for modern, economical commercial
transport planes. Martin decided to enter this market, and
accordingly embarked upon the design of the “202,” a
fast, two-engine airplane which would incorporate many
of the engineering and manufacturing advances made dur-
ing the war period. Commencing early in 1945 the project
moved ahead until by 1946 more than five hundred of
Martin’s designing engineers were working on the “202.”

Some time in the summer of 1946, Northwest decided
to purchase ten Martin 202’s. The formal contract was
not signed until February 24, 1947, but it was dated
August 31, 1946, and the evidence shows that Northwest’s
decision to purchase the planes had been made in June
of 1946. These ten airplanes were delivered to Northwest
in 1947, and they proved so satisfactory that Northwest
decided to buy three more 202’s and signed the contract
for their purchase on December 23, 1947. Northwest made
subsequent purchases, so that it owned and was operating
a fleet of twenty-five Martin 202’s on August 29, 1948, the
date on which occurred the dramatic events which pro-
vide the immediate background of this case.

At 3:50 p.m. on that day a Northwest 202 airplane,
identified hereinafter as “No. 44,” took off from Chicago

26

on a regularly scheduled non-stop flight for Minneapolis.
It carried thirty-three passengers, a pilot, co-pilot and
stewardess. No. 44 was one of the original ten 202’s pur-
chased from Martin, and, at the time of taking off, had
flown a total of 1,321 hours, or about five per cent of its
expected service life. So far as was then known, the air-
plane was in perfect condition.

During its flight the plane maintained routine opera-
tional radio contact with the ground, and at 4:55 p.m.
it reported that it was over La Crosse, Wisconsin and
estimated that it would arrive over the Hastings marker
(near Minneapolis) at 5:21 p.m. The plane was author-
ized to commence its descent so as to pass over the Hastings
marker at an altitude of 2,500 feet and was directed to
report when it passed through the 7,000 foot level on its
descending path. At 4:56 p.m. the pilot radioed that he
was beginning his descent, and at 4:59 p.m. he advised
that he was passing through the 7,000 foot level. No
further messages were received from No. 44.

At about this time the plane was observed by wit-
nesses on the ground proceeding into a violent thunder
storm. A few minutes later, at approximately 5:05 p.m.,
the left wing tore off, and the airplane crashed near Foun-
tain City, Wisconsin, a few miles to the northeast of
Winona, Minnesota. All of the passengers and crew were
killed. Subsequent investigation revealed that the imme-
diate cause of the crash was the breaking of a front wing
spar in the left wing at the point where the outer section
of the wing was attached.

Later the same day, when all that was known of No.
44 was that it was overdue, another Northwest 202, herein-
after referred to as “No. 42,” was flown on a regularly
scheduled round-trip flight from Minneapolis to Duluth.

a PA maa ese eT aS hi i SSS OA SC Ea

27

No. 42 was also one of the original ten 202’s purchased
from Martin by Northwest. It too had flown only a small
fraction of its expected service life. The weather was fair,
the air smooth, and the trip uneventful, except that the
pilot noticed that in order to keep the plane in level flight,
it required a somewhat unusual amount of extra “trim
tab.” After the pilot landed No. 42 in Minneapolis, he
made a routine report, including a statement about the
unusual trim conditions which he had encountered, and
then got into his automobile to drive home. Fortunately,
however, he changed his mind and returned to the ramp
where No. 42 was parked. He located the head of the
Northwest inspection crew, told him in detail what he
had noticed on the trip to Duluth, and urged that the
plane be carefully examined before being allowed to de-
part on its next trip. Accordingly, the inspectors did make
a thorough examination and found that a joint in the right
wing of No. 42 was completely broken, and that the wing
was being held in place only by its “skin.” It was the
same side of the same step of the same joint that had
broken in No. 44.

By this time Northwest had learned of the crash of
No. 44, and its remaining twenty-three 202 airplanes
were immediately grounded and thoroughly inspected.
The inspection of these airplanes was made jointly by
Northwest and Martin. The wings of the airplanes were
all dissembled, and it was discovered that of the four re-
maining airplanes which had flown in excess of 1,200
hours, all had fatigue cracks in the wing joints, exactly
where the wings of 44 and 42 had broken. Of the fifteen
airplanes which had flown between 500 and 1,200 hours,
seven were found to have fatigue cracks in the same
wing joint. Of the four airplanes which had flown less

28

than 500 hours, no such fatigue cracks were found. It is
conceded that the broken parts of the wing joints of
Nos. 44 and 42 which caused the loss of the first plane
and damage to the second were caused by failures which
began and developed as fatigue cracks. It is further con-
ceded that the expected safe service life of the 202 had
been between twenty-five and thirty thousand hours. All
of Northwest’s 202’s were subsequently rebuilt, in two
successive phases, and the danger of premature fatigue
failures in the wing joints was successfully eliminated.

Northwest then brought this action for damages result-
ing from the loss of No. 44 and for the loss of use of
No. 42 and three other 202’s during the time they were
being repaired. It was Northwest’s contention that the
fatigue cracks were the direct result of Martin’s negli-
gence in a number of different respects in the design and
manufacture of the 202 airplanes.

In order properly to understand this contention, it is
necessary to review briefly the evidence as to the cause
and nature of fatigue in metal. Fatigue is the phenome-
non by virtue of which a metal part will eventually crack
and break under repeated loads, each one of which is less
than its tensile strength for one load. Three of the factors
which affect fatigue life are, first, the kind of metal; second,
the amount of repeated load as related to the strength
of the metal for one load; and third, the configuration and
surface condition of the metal.

It is known that a metal which is smooth and highly
polished is less subject to fatigue than one with a rough
finish or the surface of which is marred by a scratch or
notch. A rough surface is called a “stress raiser.” Abrupt
changes of section in the metal are also “stress raisers,”
as are notches and bolt holes. It is stress concentration
which is the fundamental cause of fatigue failure.

eg a ei at mE a NSTI OTE SRE EM GE Be RMSE SS NL AN ST A TD «SPAY Tg Sh er

29
The fatigue life of some metals seems to be much more
affected by stress raisers than does that of others. Those
metals are said to be “notch sensitive.” The Martin 202
was made from an aluminum alloy called 75ST, which was
known to be much more notch sensitive than the alloy
24ST which had been used before 75ST was developed.

It was Northwest’s contention that the wing joints
which cracked and broke in Nos. 42 and 44, and which
cracked in the other airplanes, had a number of unneces-
sary stress raisers which were the result of Martin’s
negligence in design and manufacture, and that it was
these stress raisers which caused the premature fatigue
failure at the bottom of the fourth step at the outer end
of the front spar of the center wing. Northwest alleged
that Martin was negligent in the basic design of the wing
joint, in entrusting the design to an incompetent designer,
in failing to provide proper fatigue testing of the wing
joint, in using aluminum alloy 75ST where unusual stress
raisers were present, in failing to make computations of
the secondary or eccentric stresses in the wing joint, in
failing to make strain-gauge tests of the wing joint, in
violating certain Civil Aeronautics rules, and in making
certain misrepresentations to the Civil Aeronautics Ad-
ministration.

It was the position of Martin that it had used not only
ordinary care, but very great care in the design and manu-
facture of the 202 airplanes. It contended alternatively
that if there were a finding that it was negligent, North-
west had assumed the risk of danger or was guilty of
contributory negligence.

Beyond what has been said, there seems little point
in attempting to review in detail the evidence as to
Martin’s negligence. Evidence was adduced on its behalf

30

to show the great care with which the 202 was designed,
manufactured, and tested. Evidence was adduced on be-
half of Northwest to show that Martin should have known
that the wing joint as designed and manufactured, and
in view of the alloy from which it was made, was vul-
nerable to premature fatigue failure. Martin sought to
meet Northwest’s contentions by showing that the phe-
nomenon of fatigue was an elusive and little understood
one at the time these airplanes were designed and manu-
factured, and that in the light of the then state of the
art every reasonable precaution was taken to guard against
fatigue failure.

On this fundamental aspect of the case it is North-
west’s position on this appeal that the district court should
have found that Martin was guilty of negligence as a
matter of law. We cannot accept this contention. The
effect of the voluminous evidence was certainly to leave
the question of Martin’s lack of ordinary care in a state
upon which reasonable minds could differ. Indeed the
question appears to us to be an extraordinarily close one.
That being so, the trial court was entirely correct in sub-
mitting that question to the jury.

Two further contentions of Northwest, however, raise
considerably more serious questions. First, it is insisted
that the trial court was in error in submitting to the jury
the issue as to whether Northwest was barred from re-
covery because of its assumption of the risk of danger
inherent in the defective wing joint in all five airplanes.
Second, it is urged that the court was likewise in error
in submitting to the jury the issue as to whether North-
west was guilty of contributory negligence with respect
to all five airplanes. We shall discuss these contentions
in the order presented.

31
Assumption of Risk.

It is Northwest’s position that the evidence of record
did not support a submission of the issue of assumption
of risk to the jury at all. Northwest also claims that the
issue was in any event not correctly stated in the instruc-
tions as given by the trial court. If Northwest is correct
in its first contention, its second contention need not be
considered.

The parties seem to be in agreement that in order to
find that Northwest had assumed the risk of danger result-
ing from the defective wing joint, the jury would be
required to find that Northwest had voluntarily, know-
ingly, and intelligently assumed the risk of that danger,
or that the danger was so obvious that Northwest must
be taken to have done so. Morris v. Hockey Club, 157
O. S. 225, 105 N. E. (2d) 419 (1952); Masters v. N. Y.
Central Rd. Co., 147 O. S. 293, 70 N. E. (2d) 898 (1947);
Knipfer v. Shaw, 210 Wis. 617, 246 N. W. 328 (1933).

The evidence showed that during the period that the
original ten 202’s were being built for Northwest a North-
west resident engineer, two or three Northwest inspectors,
and a group of Northwest pilots and various other per-
sonnel were stationed at the Martin plant. In addition to
these Northwest employees who were in residence at the
Martin plant as part of Northwest’s so-called “Martin
Procurement Project,” a number of other Northwest em-
ployees, including officers and technical personnel, made
frequent visits to the Martin plant. Their purpose in being
there was at least two-fold, first, to familiarize themselves
with the characteristics and specifications of the new air-
planes, and secondly, to see to it that the airplanes as man-
ufactured conformed not only to Martin’s specifications,
but also to Northwest’s standards and operating needs,

)

32

not only in such major matters as safety, but in various
minor respects, such as the design of the interior of the
cabins and the location of washroom facilities. North-
west’s agents therefore were in a position to observe and
actually did observe the day-by-day manufacture of the
airplanes. They were in a position to recommend and
actually did recommend various changes in design and
manufacture.

In the light of these circumstances the district court
instructed the jury that it could consider whether or not
Northwest had assumed the risk of danger resulting from
(a) the basic design of the wing joints, (b) the material
used (75ST) in the light of this design, (c) faulty work-
manship or manufacture, and (d) the inadequacy of
inspections and tests carried out by Martin. The jury was
instructed that its finding that Northwest had assumed
any of these risks would require a verdict for Martin.

As to Northwest’s assumption of the risk inherent in
the alleged faulty design, Martin insists that the Court
was correct in submitting that question to the jury, par-
ticularly in view of the testimony of a witness called by
Northwest who testified that the respects in which the
design of the wing joint was dangerous and defective
would, after a few minutes examination, be open and
obvious to any competent engineer. This witness was a
retired employee of the National Bureau of Standards.
He was not and never had been an employee of North-
west. His testimony was at variance with the great weight
of the evidence which showed that the problem of design
from the point of view of fatigue danger was far from
completely understood in 1947. However, even accepting
this testimony at its face value, there is no evidence that
any competent Northwest engineer ever gave the wing

EOE PRR TRON Nie See

33

joint any such examination. Those portions of the record to
which counsel for Martin has directed this court’s attention
refer instead to the careful scrutiny that was given by both
Martin and Northwest personnel to the design and installa-
tion of a wing wedge which was installed to give addi-
tional dihedral to the wings, after the initial test flights of
the airplane in 1947 had shown it lacked stability. The
wing splice was designed in December, 1945, long before
Northwest had any connection with the Martin 202.
Similarly, references to testimony by Northwest personnel
of their knowledge that the metal “skin” of all airplanes
might develop cracks lends no support to Martin’s con-
tention that Northwest knew of the dangerous design of
the wing splice here involved.

As to Northwest’s alleged assumption of the risk of
possible danger in the use of the material 75ST, counsel
for Martin calls our attention to evidence that a chemical
engineer employed by Northwest had read and was famil-
iar with certain scientific literature indicating that 75ST
was an unusually notch sensitive material. There was no
evidence that this witness was connected with the Martin
Procurement Project or was familiar in any way with the
design of the wing splice, and it was not Northwest's
position that Martin was negligent in the use of 75ST per
se, but rather in the use of that material in the wing splice
as actually designed and manufactured.

As to Northwest’s alleged assumption of the risk of
danger resulting from poor workmanship and inadequate
inspection, it is pointed out by Martin that the Northwest
representatives present at the Martin plant had ample
opportunity to observe and criticize the manufacturing
and inspection procedures at all times. Martin emphasizes
that, although the Northwest representatives did insist

34

upon changes in other details of the airplane during its
manufacture, such as hinge bolts, they made no objection
to the workmanship or manufacture of the faulty splice,
nor did they request that additional inspection or testing
of the wing joint be undertaken, although they had a right
to do so. Indeed, the evidence shows that Northwest fully
approved the tests as made.

This evidence not only falls short of providing a
foundation for inferring assumption of risk, but on the
contrary leads to the inference that Northwest did not
know of or in any way appreciate a risk of danger in the
alleged faulty manufacture and inadequate testing of the
wing joint. The evidence that Northwest’s representatives
did insist upon changes whenever they saw any reason to
be dissatisfied leads to the conclusion, at least by negative
implication, that they saw no reason to criticize the wing
joint. They had no reason whatever not to object to any-
thing they might regard as hazardous, and, in fact, had
been expressly instructed by Northwest to insist upon any
changes they thought would increase the safety of the air-
planes.

In short, we believe that there is a complete absence
of any evidence that Northwest, at any time prior to
August 29, 1948, had knowledge or appreciation of any
risk of danger associated with the design, the material, the
workmanship, or the tests of the faulty wing joints in
the 202 airplanes. There is no evidence that the danger
lurking in the wing joint was so obvious to those North-
west representatives who actually did observe it that they
must be taken to have appreciated that danger. We con-
clude that it was error to submit to the jury the question
of Northwest’s assumption of risk in this case.

35
Contributory Negligence.

Northwest makes no objection to the form of the
district court’s charge on the question of contributory
negligence. It is Northwest’s position, however, that the
trial court was in error in submitting the issue of contribu-
tory negligence to the jury at all, first, because that issue
was not pleaded, and, secondly, because there was no evi-
dence in the record to justify submission of that question
to the jury. If Northwest is correct in its second conten-
tion, its first contention need not be considered.

Martin concedes that there was no evidence of any
negligence on the part of Northwest with respect to the
maintenance and handling of the airplanes after they were
delivered to Northwest. Martin insists, however, that
there was evidence sufficient to submit to the jury of
Northwest’s contributory negligence prior to the time
the airplanes were completed and delivered.* The evidence
to which our attention is directed is the same evidence
upon which Martin bases its claim of Northwest’s assump-
tion of risk. Martin argues that the difference between
assumption of risk and contributory negligence as de-
lineated in the cases is merely one of degree—between
risks so obvious they must be taken to have been known to
the plaintiff and those slightly less obvious which the
plaintiff might have discovered by the exercise of ordi-
nary care. Masters v. N. Y. Central Rd. Co., Morris v.
Hockey Club, Knipfer v. Shaw, all cited above.

Specifically, Martin again calls our attention to the
fact that many representatives of Northwest were present
throughout the period that the airplanes were manufac-

3 We are not here considering the question of Northwest’s
alleged contributory negligence with respect to the operation of
No. 44, in flying it into a thunderstorm. Certain aspects of that
issue are discussed later in this opinion.

36

tured and tested, and argues that in the exercise of ordi-
nary care at least one of these representatives should have
seen and appreciated the dangers and hazards in the wing
splice.

It is conceded by Martin that “if Northwest had
simply relied on Martin to produce a safe and sound air-
plane and had taken no further interest in the matter,
there would be no issue here of contributory negligence.”
That in any event seems to be the law. One need not
anticipate the negligence of another until he becomes
aware of such negligence. Baldridge v. Wright Gas Co.,
Ine., 154 O. S. 452, 96 N. E. (2d) 300 (1951) (Syl. 1).*
It is not contributory negligence to fail to look out for
danger when there is no reason to apprehend any.
Standard Oil Co. v. Burleson, 117 F. (2d) 412, 414 (5
Cir., 1941) ; Phillips Petroleum Co. v. Hooper, 164 F. (2d)
743 (5 Cir., 1948); S. S. Kresge v. Holland, 158 F. (2d)
495, 498 (6 Cir., 1946). One to whom a duty is owed has
a right to assume that it will be performed. He is not
required to anticipate negligent acts or omissions on the
part of others. American Stores Co. v. Murray, 87 F.
(2d) 894 (3 Cir., 1937) ; Powell Bros. Truck Lines, Inc. v.
Piatt, 92 F. (2d) 879, 880 (10 Cir., 1937) ; Phillips Petro-
leum Co. v. Miller, 84 F. (2d) 148, 153, 155 (8 Cir., 1936);
E. I. DuPont de Nemours & Co. v. Frechette, 161 F. (2d)
318, 323 (8 Cir., 1947).

4 There is no discussion in the lengthy briefs of the possibility
of a conflict of laws problem in this case, it apparently being
agreed that the law of the forum (Ohio) applies, except with re-
spect to No. 44, which crashed in Wisconsin. However, on the
question of a duty to inspect, the law of the state where the air-
planes were manufactured and delivered (Maryland) and of the
state where the damage was discovered (Minnesota) seems in any
event to be the same as that of Ohio. Klein v. Dougherty, 200
Md. 22, 26, 87 Atl. (2d) 821, 825 (1952); Mahowald v. Beckrich,
212 Minn. 78, 2 N. W. (2d) 569, 571 (1942).

37

While thus conceding that Northwest was under no
duty to make a detailed inspection of the airplanes, Martin
argues that since Northwest did in fact undertake an
independent inspection, it was guilty of contributory
negligence in accepting and putting the planes into use if
dangers or defects existed in the wing splice which could
have been discovered by the exercise of ordinary care.
Martin refers us to no authority for this proposition.

In the light of the undisputed facts of this case, we
are unable to accept Martin’s contention. The evidence
clearly showed that the damage was caused by fatigue
cracks in the wing joints of the airplanes. There was no
evidence whatever that any action of Northwest caused
or contributed to cause those fatigue cracks. Northwest
did not participate in any way in the design of the critical
wing joint, nor in deciding upon its specifications. North-
west had no knowledge of any defect in the design. The
evidence was clear that Northwest relied on the manu-
facturer for the elements of basic safety of the airplane,
and there was no suggestion in the evidence that North-
west had any reason to doubt Martin’s competence and
skill as a designer and manufacturer of airplanes.

There was no evidence that Martin took any action or
refrained from taking any action in the design, manufac-
ture or testing of the critical wing splice in reliance upon
Northwest’s inspection. Where one undertakes an act
which he has no duty to perform, and another reasonably
relies upon that undertaking, the act must generally be
performed with ordinary care. See Conowingo Power Co.
v. State of Maryland, 120 F. (2d) 870, 874 (4 Cir., 1941).
Cf. Restatement of Law of Torts, § 325. That, however, is
not this case. There was no evidence that Martin relied in
any way upon the inspections made by Northwest, with
respect to the airplanes generally or the wing joint in

particular. That being so, we fail to see how the inspec-
tions which were made by Northwest contributed in any
way to the damages it sustained.

A negligent defendant is exculpated from liability to
a plaintiff who has increased the risk of harm to himself
over what the risk would have been had he exercised
ordinary care. Here it is conceded that in the exercise of
ordinary care Northwest need not have made any inspec-
tion of the airplanes at all. If Northwest had made no
inspections, it is obvious that the risk of danger in the
wing joints would have been no greater and no less than
it actually turned out to be. The fact that inspections were
made in no way increased the risk of harm. Northwest
must not be penalized for attempting in its own interest
to conform to a higher standard of care than that imposed
upon it by the law.

The realities of the situation support the conclusion
we have reached. The evidence showed that the Martin
202 was an assembly of approximately 75,000 separate
parts. Some 17,000 separate drawings were made in
connection with its design and manufacture. More than
five hundred Martin designing engineers were engaged on
the 202 project in 1946, approximately a hundred of them
on the wing alone. Over 2,000,000 man hours were ex-
pended on the design of the 202. By contrast, Northwest
had never more than three and for most of the time only
two inspectors present at the Martin plant. None of them
was an aeronautical engineer. In addition, one engineer
from Northwest was stationed at Martin’s plant. The
evidence is clear that the primary concern of these North-
west representatives was with those obvious aspects of the
design and manufacture of the airplane affecting North-
west’s operational and maintenance procedures. With
respect to elements of primary structure and basic safety

eee

39

Northwest relied in full upon Martin, as in the exercise
of ordinary care it was entitled to do. In view of the com-
plexity and magnitude of the project, Northwest was
obviously quite helpless to do anything else.

As we have said, the evidence of Martin’s negligence
in the design, manufacture and testing of the 202 pre-
sented an extraordinarily close question. The question of
whether or not it departed from a standard of ordinary
care had, of course, to be resolved by measuring its con-
duct against the standard of what an ordinarily prudent
designer and manufacturer of airplanes would have done.
Northwest, on the other hand, was the operator of an
airline. The record contains no evidence that it was guilty
of any departure from the standard of care of an ordinarily
prudent airline operator. See Restatement of Law of Torts,
§ 289. We conclude that the district court was in error in
submitting to the jury the issue of Northwest’s contribu-
tory negligence based upon its inspection of the five air-
planes.

Contributory Negligence with Respect to No. 44—Radar.

With respect to No. 44, the airplane lost in flight,
Martin’s answer averred that Northwest had been guilty
of contributory negligence in causing the plane to be flown
into a storm, in failing to promulgate and follow proper
flying practices, in failing to reduce the speed of the plane
while in the storm, and in failing to give the pilot proper
weather information. Evidence was adduced in support
of these allegations, creating a jury question as to whether
or not Northwest had been guilty of contributory negli-
gence in the respects charged, and whether or not such
contributory negligence had been a cause of the plane’s
loss. The trial court submitted this issue to the jury with
clarity and completeness, correctly instructing them as to

40
the applicable Wisconsin law of comparative negligence
(see § 331.045, Wisconsin Statutes 1951). |

Martin’s answer also alleged that Northwest had been
guilty of contributory negligence in failing to equip No.
44 with proper and adequate radar equipment “so as to
enable it to be navigated around and avoid the violent
storm area.” Over Northwest’s objection the trial court
submitted to the jury the question of whether the failure
to install airborne radar constituted negligence contribut-
ing to cause the loss of No. 44. Northwest assigns as error
the submission of the radar issue to the jury, insisting
that there was no evidence to support it.

The evidence showed that neither Northwest nor any
other American airline had airborne radar in operational
use in August, 1948, when No. 44 was lost. Early in 1948
Northwest had conducted a study lasting several months
as to the feasibility of using airborne radar on its commer-
cial flights. The purpose of the study had been to deter-
mine the advantage and utility of airborne radar in (1)
terrain collision avoidance; (2) avoidance of interflight
collision with other aircraft; (3) avoidance of high turbu-
lence or high precipitation areas. As a result of the
study, Northwest had concluded that the radar then com-
mercially available was not feasible in performing these
functions for the reasons that (1) while trustworthy in
about 95% of the cases, it was likely to be dangerously
misleading in the remaining 5%; (2) the screen illumina-
tion was so low as to make the equipment useless in day-
time; (3) complete “historical attention” on the part of
_ the viewer was required, that is, the radar echo at any one
moment would be unintelligible to one who had not given
the screen complete attention for at least the preceding
five minutes.

41

On the other hand, there was evidence that, prior to
the time of No. 44’s loss, airborne radar had been used
successfully in military planes. There was also evidence
that airborne radar had been used in a United States
Government experimental project, known as “The Thun-
derstorm Project,” carried out in 1946 and 1947 by the
Air Force, Navy, National Advisory Committee for Aero-
nautics, and the Weather Bureau, for the purpose of ob-
taining information concerning the internal structure and
behavior of thunderstorms in the interest of safety in
flying.

The report of this project, published under the title,
“The Thunderstorm,” was admitted in evidence. That
document contained the following two statements, among
others: “With a radar equipped aircraft an appreciable
reduction in gust experience can be achieved by circum-
navigation of radar echos caused by thunderstorms. * * *
If his plane is equipped with a radar set having reason-
ably long range and plan-position indicators, the pilot may
observe the structure of the squall line while still many
miles away and take action to plan his penetration or cir-
cumnavigation with a minimum loss of time.”

We are in complete agreement with Martin’s state-
ment that “whether the governing law be that of Wis-
consin, Ohio, or the Federal Courts,” the fact that North-
west conformed to the practice of other airlines in failing
to equip No. 44 with radar did not establish its exercise
of ordinary care as a matter of law. Customary practice
is not ordinary care; it is but evidence of ordinary care.
E. L. Chester Co. v. Wisconsin Power & Light Co., 211
Wis. 158, 247 N. W. 861 (1933); Sprecher v. Roberts, 212
Wis. 69, 248 N. W. 795 (1933); Ault v. Hall, 119 O. S. 422,
164 N. E. 518 (1928); Texas & Pacific Ry. Co. v. Behymer,
189 U.S. 468 (1903).

42

The difficulty we encounter, however, is occasioned
by our failure to find in the record any evidence that satis-
factory airborne radar equipment was commercially
available in August, 1948. Three expert witnesses testi-
fied on the question of airborne radar, two on behalf of
Northwest and one on behalf of Martin. Their uncon-
tradicted testimony was that the airborne radar commer-
cially available in August, 1948, was unreliable and
unsatisfactory. Martin’s witness testified that “There were
no satisfactory radars available for commercial use” in
the summer of 1948.

While the two above-quoted excerpts from “The
Thunderstorm” might at first blush seem to imply other-
wise, we have found nothing in that publication to indi-
cate that satisfactory airborne radar was then commer-
cially available. Indeed the document contains statements
indicating such radar was not then available. For ex-
ample: “At the present time a practical way is not
available for a pilot approaching a thunderstorm to de-
termine, or be informed of, the number and location of
the cells in it and their varying stages of development.
* * * Thus there is reason to believe that further develop-
ment of radar equipment will enable the pilot to make
use of it for selecting a flight path through the cloudy air
between the cells of a storm, where hazardous conditions
will be at a minimum.”

This issue of airborne radar involved only one of
many aspects of Northwest’s alleged contributory negli-
gence with respect to the loss of No. 44. It played a
prominent part, however, in argument to the jury, and its
discussion occupies a substantial portion of the briefs on
appeal. We need not seek the reason. The very word
“radar” is enough to capture the imagination with its
much-publicized marvels. Yet in August, 1948, there was

43

no evidence that feasible airborne radar was commercially
available to operators of airlines.

On the basis of the evidence of record, we conclude
that there was prejudicial error in submitting this ques-
tion to the jury.

The District Court’s Rulings on Admissibility
of Evidence.

Northwest complains of the district court’s limitation
and rejection of certain evidence offered by it and of the
court’s admission of certain evidence offered by Martin.

Purportedly to show the state of the art prior to the
manufacture of the 202’s, Martin was permitted to offer
in evidence a number of Civil Aeronautics Administra-
tion directives dealing with various and sundry defects
which experience had disclosed in different types of air-
planes. While we agree with Northwest that the directives
had little relevance, we think there was no abuse of dis-
cretion in admitting them.

We believe too that the district court was correct in
refusing to permit Northwest to use the evidence of the
modifications in the wing joint, made by Martin after the
damage was discovered, to show what Martin should
have done in the first place. Northwest argues that its
purpose was simply to show what Martin could have done
in the original design and manufacture of the wing joint,
but the result would have been to provide a basis for in-
ferring what should have been done. This kind of hind-
sight evidence is not properly admissible upon the issue of
ordinary care. Columbia Railroad Co. v. Hawthorne, 144
U.S. 202 (1892). Similarly, the court was correct in ex-
cluding a report of certain experiments conducted by The
Aluminum Company of America Research Laboratory,

44

after the faulty wing joint was discovered. Northwest con-
tends that this report should have been admitted in re-
buttal to show the relative merits of various types of wing
splice design. In view, however, of the voluminous evi-
dence of record showing the complicated interplay of
stresses in a wing structure, the Aluminum Company ex-
periments with isolated joints were of doubtful probative
value. The report of the experiments was involved, and
the trial court did not abuse its discretion in ruling that
the danger of the report’s confusing the jury outweighed
its materiality and relevance. See 2 Wigmore, Evidence
[3rd Ed., 1940], Section 444.

During the trial the district judge was faced with the ©
decision of many complicated evidentiary questions. His _
rulings were conscientious and consistently fair. Indeed, —
in his entire conduct of this case during the many tedious
weeks of trial, he manifested professional competence of —
an extremely high order. It is accordingly with great re- _
gret that we have reached the conclusions indicated in —
this opinion with respect to fundamental aspects of the |
court’s instructions to the jury.

For the reasons pointed out in this opinion, the judg-
ment is reversed and the case remanded to the district
court for a new trial.

McAtuister, Circuit Judge, dissenting. In the pre-
vailing opinion, Judge Stewart has most carefully and
comprehensively analyzed the several thousand pages of
the record in this complicated case, and the extensive
briefs, with the result that the vast body of the evidence,
including the technical testimony of engineering experts,
has been simplified, and the issues clearly presented. I
differ only in the conclusion as to the questions of assump-

se fc

45

tion of risk and contributory negligence which I feel were
properly submitted to the jury. It was appellants’ witness
who testified that the wing splice design was not a safe
and suitable design; that it was dangerous and defective;
and that the dangers were not such as to require great and
discriminating knowledge to understand, but were so open
and obvious to any competent engineer that they might be
perceived at first blush. While this was the only evidence
to such effect, it would seem that appellee Martin Com-
pany was entitled to protect itself against the contingency
that the jury might believe it by asking the court to charge
on assumption of risk; and that the district court properly
submitted the question to the jury. As to the issue of con-
tributory negligence, while the evidence was not extensive
or convincing, there was, in my opinion, some evidence
that radar equipment was available; that appellant North-
west Airlines had experimented with it in its planes, in
studies to determine the advantage of using it to avoid
high turbulence areas; and that it would have been of as-
sistance in circumnavigating a thunderstorm area. There
was also evidence that while radar would have given an
accurate picture of the turbulence 95% of the time, it
would have been inaccurate and dangerous 5% of the
time; that the screen illumination was so low as to make
the equipment useless in the daytime; and that continuous
attention by the viewer of the radar was necessary. In
the light of all of the evidence—much of it, confessedly,
lacking the certain and specific quality that would remove
doubts as to whether the question of contributory negli-
gence was in th case--it yet seems to me that the district
court properly submitted to the jury the question whether
in the exercise of due care, Northwest Airlines should
have installed radar as an aid to thunderstorm flying. I
would, therefore, affirm the judgment of the district court.

46
JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT.
(Filed May 31, 1955.)

Appeal from the District Court of the United Siates
for the Northern District of Ohio.

This cause came on to be heard on the transcript of
the record from the District Court of the United States
for the Northern District of Ohio, and was argued by
counsel.

On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court in this cause be and the same is hereby re-
vers2d and the case remanded to the district court for a

| new trial.

ORDER OF THE COURT OF APPEALS DENYING
REHEARING.

(Filed August 29, 1955.)
The petition for rehearing is denied. Judge McAllister
is of the opinion that the petition for rehearing should be
granted.

47

ORDER OF THE COURT OF APPEALS DENYING
MOTION TO VACATE.
(Filed October 3, 1955.)

Upon consideration of the motion of Glenn L. Martin
Company for an order (a) vacating and setting aside the
order of this court dated August 29, 1955, denying ap-
pellee’s petition for rehearing, and (b) reinstating said
petition for rehearing for reconsideration by the court
en banc;

Ir 1s Orperep that the said motion be and it hereby
is denied.

In the order of this court of August 12, 1955, denying
a motion to reconsider in National Labor Relations Board
v. Cambria Clay Products Company, No. 12072, it was
stated: “And the court being of the opinion that the uni-
form procedure heretofore followed by the court should
not be departed from, namely, that in cases where the
appeal was heard, and the judgment or order complained
of was decided, by a regular Court consisting of three
judges only, . petition to rehear or to reconsider should
not be considered by the Court en banc.” The uniform
procedure there made public was established after full
consideration by a majority of the Circuit Judges of this
Circuit in active service.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0321%3A1. Public record. Not legal advice.