Petition for Writ of Certiorari — North American Aviation, Inc. v. Hughes (No. 601)
Supreme Court brief1957
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eo eG < :
Supreme Court of the Unite
October ong ‘iat 1957
NortH AMERICAN AviaTIoN, INc., a Corporation,
Petitioner,
VS.
Wanpa LFeE HuGHES AND RANDALL L. HUGHES, a
Minor, by His Guardian ad Litem, Harry Sutton,
Respondents.
a“
Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
Jor Criper, JR.,
548 South Spring St.,
Los Angeles, California,
Attorney for Petitioner.
Associate Counsel not.members of this
Court:
ELBER TILSON,
Dona_p RupPE,
548 South Spring St.,
Los Angeles, California,
Henry E. Kappler,
453 South Spring St.,
Los Angeles, California.
te el cn ed
SUBJECT INDEX
PAGE
The opinion of the court below liane Cnet. Wenn Aecles acsoetrnee 2
Jurisdiction ................ fA EN sinaciiaiitoniapane 2°
Questions presented ........... 2
I. sicicnicnininisicnntiegsiittebpsiiansiameceinaninisinnticiciivinnietiiainitininniatinnincaiieigain 4
eres Gi I Ge ersten siciereenressneretneeesonnenscns 10
I,
The Court of Appeals erronecusly, without the citation of a
single authority, decided a question of utmost and vital im-
+ portance to the entire aviation industry and to the United
States Government, the sole purchaser of the jet aircraft
involved, without regard to the law of the State of Cali-
fornia as required by the opinion of this court in the case
qo Tis. TU, Ie TF, Th, annie ccetcsereterreens 10
II. |
The decision of the Court of Appeals in the instant case is
directly in conflict’ with the decisions of the Supreme Court
of the State of California in the cases of La Porte v. Hus-
ton, 33 Cal. 2d 167; Michener v. Hutton, 203 Cal. 604;
Ybarra v. Spangard, 25 Cal. 2d 486; Danner v. Atkins, 47
Cal. 2d 327 siiceininepsaieiicosinetibee ss ciiehpei tipi aaislbpaaatnniiiipeacuancianinncialites 12
III.
The decision of the Court of Appeals is in conflict with the
decisions of other cases decided by various Circuit Courts
‘of Appeal, i.e., the cases of Williams v. United States, 218
—~F. 473 (Sth Cir.), and Morrison v. Le Tourneau Co., 138
F. 2d 339, where the Fifth Circuit Court of Appeals ,re-
fused to apply the doctrine of res ipsa loquitur to the crash
of aircraft, and particularly the Williams case, which in-
volved the explosion and crash of a jet aircraft.......00000...... 18
=
a PAGE
IV. :
The writ should be granted for the further reason that the
verdict was so palpably contrary to the evidence that it
caunot be sustained on any rational grounds. It was a
flagrant miscarriage of justice and the refusal to set it aside
was a clear abuse of judicial discretion which should be
corrected by this court........ 20
. Conclusion ee | 24
| Appendix :
| Opinion of United States Court of Appeals, for the Ninth
| Circuit App. p. I
TABLE OF AUTHORITIES CITED
Cases PAGE
Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472... 20
Cohn v. United Air Lines, 17 Fed. Supp. 865.....--......cc0000.sc0eeo 19
Dalehite v. United States, 346 U. S. 15 .c.......ccccssccccessscssesssssseeeseeeee -21
Danner v. Atkins, 47 Cal. 2d 327 a ee
Davies Flying Service v. United States, 114 Fed. Supp. 776........ 19
Erie Railroad Co.-v. Tompkins, 304 BR Ri iciciiccaiintatasnd 3, 10
Hudson ¥. Moonier, 304 U. S. 397 .......0-cccccccsesccccsesseecssesseecsseeeee 3, 10
Judson Pacific Murphy, Inc. v. The Stove Co., 127 Cal. App.
a sceemnmuirmntcnnnn 11
Keiper v. Northwestern Pac. R. Co., 134 Cal. App. 2d 702, 286
(8 SESS Seainachiaas dediddladacnien 17
La Porte v. Huston, 33 Cal. 2d 167.0.......scsccccccccssccsssessneyieneeesd, 13
Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 749, 90 L. Ed. 916... 21
Looney v. Metropolitan R. Co., 200 U. S. 480, 26 S. Ct. 303, _
I a itinacienierinuciniinasoaietiiietanpanantennshinnssannanmanapninannanes 17
Maryland Casualty v. Ind. Metal Products Co., 203 F. 2d 838... 22
McPherson v. Buick Motor Co., 217 N. Y. 383, 11 N. E.
a a cumsbnsininebantilting 10, 21
Morrison v. Le Tourneau of Georgia, 138 F. 2d 3339.............. 12, 19
O’Rourke v. Day and. Nite Water Heater Co., 31 Cal. App. 2d
(STIS RTP aS Ce a . 23
Sheward v. Virtue, 20 Cal. 2d 410..........--...cseessseeesseessoeseenesene tenes 11
Spencer v. Beatty Safway Scaffold Co., 141 Cal. App. 2d 875... 16
Stultz v. Benson Lumber Co., 6 Cal. 2d 688..0..00.....00.0..c.s0eecessoeem 11
Williams v. United States, 218 F. 2d 473......2.......2......0.-.ceeccceeeeceees 18
Wemrirme . Slemmmmer, BS CR, Be I anna ania anna csernencsnesss 13, 16
Rn a, A I as ceenninsnannncesanmmeneni 3, 13
STATUTES @
United States Code, Title 28, Sec. 1254(1) -..002....ceccecccceeeeeees 2
United States Code, Title 28, Sec. 1332-a(1) ...02.20o.ceceecceceeeee 4
TEXTBOOK
165 American Medical Association (Oct. 19,1957), p. 905.......... 14
. ee
IN THE
Supreme Court of the United States
October Term, 1957 :
POA, nihinetitlains
NortH AMERICAN AVIATION, INc., a Corporation,
Petitioner,
US.
WanpvA LEE HuGHEs AND RANDALL, L. HucuHEs, a
Minor, by His Guardian ad Litem, Harry Sutton,
Respondents.
Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
To the Honorable Earl Warren, Chief Justice, and -the
Associate Justices of the Supreme Court of the
United States:
Your petitioner, North American Aviation, Inc., a
corporation, defendant in the District Court, prays that
a writ of certiorari be issued to review the judgment
and decision of the United States Court of Appeals for
the Ninth Circuit, rendered on August 9, 1957 (No.
15,292), affirming a judgment of the United States Dis-
trict Gourt for the Southern District of California, Cen-
tral Division, based upon the verdict of a jury, assessing
damages against your petitioner in the sum _ of
$125,000.00 for the alleged wrongful death of Fred L.
Hughes, a United States Army pilot. |
Qreneeepeeeeemmnnecnservennen ances
oor
The Opinion of the Court Below.
No written opinion was filed by the District Court in
connection with any phase of the litigation. The opinion
of the Court of Appeals is not yet reported. A copy of
the Opinion of the Court of Appeals is appended to the
petition for writ of certiorari. |
Jurisdiction. =
Jurisdiction to review this case upon a writ of certi-
orari is conferred upon this Court under '28 U. S. C.
1254, Sub. 1.
The opinion of the Court of Appeals for the Ninth
Circuit was filed August 9, 1957. A petition for a
rehearing was filed on September 9, 1957 and was there-
after on September 25, 1957 denied.
Questions Presented.
1. In a suit against the manufacturer of a jet air-
craft where the manufacturer’s sole customer is the
United States Air Force, manufacturing an aircraft |
according to United States Air Force plans and specifi-
cations, and where no evidence is introduced establish-
ing any negligent act or omission on the part of the
manufacturer in connection with the manufacture, con-
struction or design of the aircraft, which thereafter
crashes while under the control of an Air Force pilot, .
‘can the manufacturer be held liable?
2. \‘Jhere the United States Coyrt of Appeals in an
unprecedented decision, without the citation of a single
legal authority, created a striking innovation in the field
of common‘law manufacturer’s liability, imposing upon
the manufacturer a virtual insurer’s liability, without
resort to the law of the highest court of the State of
a a
California, is not the opinion in violation of the prin-
ciples set down by this Court in the case of Erie Railroad
Co. v. fompkins, 304 U. S. 64, and Hudson v. Moonier,
304 J. S. 397? .
3. Did not the United States District Court and the
Court of Appeals commit an abuse of discretion in refus-
ing to set aside the verdict and order a new trial to
petitioner where the verdict was clearly against the
weight of the evidence and plainly the result of passion,
prejudice and sympathy ?
4. Was it not clearly error, in a case where, the Court
of Appeals conceded that the true cause of thie accident
was a “mystery”, ta conclude that merely because the
airplane crash may have been “due to a mechanical de-
fect which developed while the machine was still in the
air’, that from that fact alone the manufacturer of
an aircraft is.to be held responsible in damages for the
crash of an airplane under the control of a pilot over
whom the manufacturer has no control?
5. Did not the Court of Appeals actually apply the
doctrine of res ipsa loquitur in order to affirm the judg--.
ment of the District Court in utter violation of innumer-
able opinions of the California Supreme Court, particu-
larly La Porte v. Huston, 33 Cal. 2d 167; Zentz v.
Coca Cola, 39 Cal. 2d 167 and Danner v. Atkins, 47
Cal. 2d 327?
6. Did not the Court of Appeals fall into grievous
error in refusing to consider any of petitioner’s argu-
ments or authorities, and did not the Court thereby de-
prive petitioner of due process of the law guaranteed by
the Constitution of the United States?
ss
a
Statement. |
Jurisdiction was vested in the District Court by rea-
son of diversity of citizenship, the plaintiffs being resi-
dents of the State of Ohio and the defendant being a
resident of the State of Delaware. (28 U. S. C. 1332-a
(1).) ee |
Petitioner, North American Aviation, Inc., was the
manufacturer of a jet aircraft known as the F86F, a
single engine jet plane. The United States Air Force
was the sole customer of petitioner and the plane was
manufactured according to Air Force specifications.
The particular plane had been manufactured for a
number of years. It was a complex piece of equipment
containing approximately one million parts, and through
the several years of its manufacture had undergone
certain revisions in design. The plane was small, being
approximately 37 feet in length and with a wing span
of only 36 feet, but capable of exceeding a speed of
735 mph. The jet engine was manufactured by the
General Electric Corporation.
Throughout the manufacture of the plane it is min-
utely inspected and checked, some 225 inspectors taking
part in the inspection of the plane, its components and
the various systems of the plane.
_ Upon completion, it was test flown and three minor
' squawks w®re discovered having relation to the opera-
tion of the plane at high speeds only. These initial
operational squawks were checked off and corrected and
the plane was accepted by the United States Army Air
Force after an acceptance flight. No takeoff difficulty
was encountered on either the test flight or acceptance
flight.
om —
Independently of petitioner, the Army Air Force had
inspectors on the premises whoiinade inspections of their
own.
On«December 18, 1953, the decedent, First Lt. Fred
L. Hughes, an Air Force pilot with less than 38 hours
of instrument. flying time, for _— unexplainable reason
was ordered by his superiors to'fly the plane-in question
from the Los Angeles International Airport to the Nellis
Air Force. Base at Las Vegas, Nevada. Under Air
Force regulations, several types of instrument cards are
issued to pilots, one a white card, requiring a minimum
of 10 instruinent hours a month. The evidence demon-
strated that a pilot without a current white card was
violating Air Force regulations in taking off with in-
struments. At the time of the flight in question, de-
cedent did not have a current white card or instrument
certificate. The evidence was uncontradicted that on
the day in question, the weather was instrument weather,
and that despite the failure of the pilot to have the proper
white card auth ~izing an instrument flight, he was
cleared for such a flight.
While there were: minor discrepancies in the_testi-
mony of the many witnesses relating to visibility, there
can be no doubt about the fact that the flight was
scheduled as an instrument flight, the pilot filed an
instrument flight plan indicating an instrument flight,
and the weather was classified as instrument weather.
There was a low fog rolling in from the ocean, and
shortly after takeoff the pilot and the plane were com-
pletely enveloped in the fog.
While there were minor conflicts relating to the precise
happening of the accident, it was undisputed that the
plane reached a height of no more than 100 feet. Shortly
—6—
thereafter the plane crashed. ‘Whether the plane ex-
ploded just before it crashed or exploded after it crashed,
when the gasoline tanks located: on the wing tips struck
_ the ground, was a matter upon which there was some
conflict. It was uncontradicted that after the plane
crashed .to the ground, it caught fire and the pilot was
instantly killed. The. area was -immediately roped off
by Army authorities and thereafter a mitiute and de-
tailed inspection of every portion of the plane was under-
en by a combined group of investigators from .North
American, the-United States Army Air Force and from’
the General Electric Company, the manufacturer of the
jet engine. After minute inspection of all of the remain-
ing: portions ‘of, the aircraft, it was concluded by all of
the experts that there was no evidence to indicate any |
structural.or mechanical flaw or defect in the plane. The
eyidence was uncontradicted that immediately. prior to
the takeoff on an instrument flight, it is necessity to run
the jet engine on full power for at least 5 minutes to
enable the gyro instruments to properly stabilize them-
selves. This is not true With a jet plane, however, where
an instrument takeoff is unnecessary: ~*In. such cases,
no warm up is necessary. The evidence was uncontra-
dicted that the decedent, Lt. Hugfies, for some reason
did not sufficiently operate the jet engine prior to actual
take off time to enable it to properly stabilize his in-
struments. It is imperative that the gyro horizon be in
proper working ‘order so that the pilot can tell where
he is going when he is flying on instruments.
While respondents assert that there was evidence of
negligence in the manufacture of the aircraft, they were
. not able in the trial court or in the Circuit Court to
point out any negligent act or omission on the part of
: \
e \
Pee) |
wie
North American which was in any manner a proximate
cause of the crash of the plane.
To this day, no one has pointed to any evidence indi-
catipg any particular defect or flaw in this jet aircraft.
No one has suggested that there was anything improper
about ‘the design of the aircraft. There is nothing {0
indicate that this aircraft was not constructed in ab-
solute accord with United States Air Force plans and
specifications. There is not one scintilla of evidence
that there was any faulty inspection proggdure or that
anything done or omitted with reference to the inspec-
tion or manufacture of the aircraft proximately caused
or contributed to the crash of the-plane. »
teeta
the product may be safely used for the purpose for
which it was intended, including the duty of the manu-
facturer to make such inspections and tests of material
obtained from a source outside the manufacturing plant,
as ordinary prudence would indicate to be necessary. > The
jury returned a verdict in favor of the heirs of the
decedent and the District Court denied petitioner's -mo-
tion for a judgnfent notwithstanding the verdict, or for
a new trial. At the time the District Court ruled on the
motion for a new trial, the court stated: “I don’t know
on what theory the jury determined negligence in this
case." 1 might be very frank in saying to counsel that
.
“©
ae
‘
ee oy
-e
if I had been trying this case without a jury, I wouldn’t
have found for the pldintiff. In my opinion I think that
the plaintiff would have to prove more than that an
accident happened. in my opinion I think that ¢s all
counsel proved, that an accident happened.” [P. 878;
Italics added. ]
Further indicative of the District Court’s reaction to
the evidenca is the following statement : “T am satis-
fied in my own mind regardless of what way I decide
this case, that there will be an appeal. If I deny the
motion, I am satisfied the defendant will appeal, and I
would suggest to the defendant that they do appeal. I
-am satisfied if’ I granted the motion, the plaintiff will
appeal, and I would recommend to the plaintiff that he
appeal, so regardless of my decisién, I think there is
going to be an appeal in this case. / think I wall place the
burden of the appeal upon the defendant rather than upon
the plaintiff. 1 don’t feel justified in substituting my
gpinion for the opinion of the jury, although I am very
frank to say I don’t see negligence. . . .” [P. 879,
Italics added. ] ;
Upon appeal from the District Court’s judgment, the
Court of Appeals affirmed the judgment. In affirming
the judgment, the Court of Appeals has written one of
the most unique and unprecedented decisions’ to be found
in any reported case. The Circuit Court merely set forth
what it considered to be the petitioner’s version of the
facts, followed by a statement of the respondent’s conten.
tions with reference to the facts, set forth a summary of
c
ee
a
‘ ilies
the argument of both sides, a statement of the questions
_presented, and then concluded the opinion with an amaz-
ing paragraph, out of which stems a result so palpably
erroneous that to deny a writ of certiorari would result
not only in gross miscarriage of justice in the instant
CY
are now in litigation, as well as cases involving manu-
facturer’s liability in general.
The setting for the bizarre conclusion is to be found
in the opening Janguage of the opinion where the Court
of Appeals demonstrates its complete lack of ‘understand-
ing of the problem when it stated:
“Man or machine—Which was responsible for
the jet airplane crash. . . . If the man was re-
sponsible for the accident . . . reversal results.
If the machine was defective, the manufacturer . . .
. | was responsible. . . .” (App. p. 1.)
The amazing paragraph is as follows:
“Although the true cause of the accident will
probably ‘remain a mystery, there 2 pears substan-
tial evidence to support the appellant's theory that
the crash was due to a mechanical defect which
developed while the machine was still in the air;
in other words, a defect in the manufacture of the
airplane for which the appellant was responsible.”
The Court does not refer in its conclusion to the nature
or character of the so-called substantial evidence sup-
porting appellee’s theory, nor is there any way that it
can be ascertained.
case, but in the countless cases involving airplanes which
—~s
Ce
REASONS FOR GRANTING THE WRIT.
I, |
‘The Court of Appeals Erroneously, Withput the Cita-
tion of a Single Authority, Decided_£ Question of
Utmost and Vital the Entire Avia-
tion Industry and to the United States Govern-
ment, the Sole Purchaser of the Jet Aircraft In-
volved, Without Regard to the Law of the State
of California as Required by the Opinion of This
Court in the Case of Erie v. Tompkins, 304 U. S.
64. ,
This Court, in the cases of Erie v. Tompkins, 304
U. S, 64 and Hudson v. Moonier, 304 U. S. 397, and
subsequent cases, has laid down the basic principle that
in a diversity case, the Federal Courts must follow the
substantive law of the State.
In the case of Hudson v. Moonier, 304 U. S. 397,
supra, this Court granted certiorari and reversed, stating: |
“The Court treated the question of the liability of the
lessor ‘as one of general law. The Court should have ap-
plied the law of Missouri, where the injury occurred.”
Nothing is clearer than that the Court of Appeals
failed to comply with the mandate of this Court in the
case of Erie v. Tompkins, 304 U. S. 64, supra. The lia-
bility of petitioner as a manufacturer of the jet aircraft
was a liability which was predicated upon negligence. War-
ranty was not involved and was eliminated in the trial
e
‘court.
The doctrine of manufacturer’s liability stems from
such cases as McPherson v. Buick Motor Co., 217 N. Y.
383, 11 N. E. 1050. ; o
aniline
The doctrine is well crystallized in Califcrnia.
Sheward v. Virtue, 20 Cal. 2d 410;
Stultz v. Benson Lumber Co., 6 Cal. 2d 688;
Judson Pacific Murphy, Inc. v. The Stove Co.,
127 Cal. App. 2d nae 7
There is not the remotest suggestion fa, any of these
cases or in any California case, that a “fmanufacturer’ >
liability will be imposed merely because. a. mechanical
_ defect developed after a machine went into 0 ration.
ete 4
The statement of the Court of Appeals that there appears “—_.
substantial evidence to support the appellee’s theory that
~ the crash was due to a “mechanical defect which developed
while the machine was still in the air” is utterly inac- .
curate insofar as it purports to be a statement of the
applicable law or a statement of law. Liability is imposed
upon a mariufacturer not because a mechanical defect
developed while the airplane is in the air, but is imposed
because there is evidence that there was, some negligent
act or omission on the part of the manufacturer which
in some manner proximatefy~taused the failure of the
plane. A mechanical defect might well develop in the
air from a myriad of circumstances entirely unrelated
to any negligence on the part of a manufacturer.
The Court of Appeals has, in utter disregard for all
of the recorded cases, treated the development of a
mechanical defect in the air as synonymous with a defect
in the manufacture of the airplane.‘ No authority is cited
nor can be cited for such a far flung and chimerical
statement of the law of manufacturer’s liability. The
very use of the expression “man or machine’ demon-
strates the fallacy of the Court’s position. A manufac-
turer’s liability cannot be imposed based upon such a
—,
rigid supposedly mutually exclusive approach. The
_ opinion is predicated upon the concept that either the
fault of the pilot or the fault of the manufacturer neces-
ie sarily caused the crash. Neither may have been at fault
‘
and yet the. plane mav re crashed in what may well
have been an’ unavoidable accident.’
ie
The Decision of the Court of Appeals in the Instant
Case Is Directly in Conflict With the Decisions
of the Supreme Court of the ‘State of California
in the Cases of La Porte v. Huston, 33 Cal. 2d 167;
Michener v. Hutton, 203 Cal. 604; Ybarra v. a
gard, 25 Cal. 2d 486; Danner v. Atkins, 47 Cal.
2d 327.
The Court of Appeals in reaching its perplexing and
amazing result contained in the single concluding para-
‘graph of its opinion, has in effect applied the doctrine
of res ipsa loquitur although no mention is made of
that obvious fact. The application of this doctrine was
refused by the trial court and its application on appeal
was urged to the Court of Appeals by the respondent.
Whatever the rules may be for its application in other
states, it is clear that in California there are certain basic
requirements which would in this case completely fore-
close the application of the doctrine: °
1. An accident must be of & kind which does
not occur in the absence of someone’s negligence.
1In Morrison v. Le Tourneau of Georgia, 138 F. 2d 339 at
341, the Court (Sth Cir.) pointed out: “ pall gre of negligence
as to either defendant was too indefinite inadequate. The
evidence is as consistent with the theory of unavoidable accident
as it is with either theory of negligence as to either defendant.
a
’
2. The accident must be caused by an agency or
instrumentality within the exclusive control of the
defendant.
fw
3. The accident must not have been due to any
voluntary action or contribution on, the part of
plaintiffs’ decedent.
See:
Ybarra v. S pangard, 25 Cal. 2d 486, supra;
Zentz v. Cc oca-C ola, 39 Cal. 2d 436.
w
None of these requirements jrave been met.
At to requirement ‘No. 1, the Supreme Court of Cali-
fornia int La Porte v.‘ Huston, 33 Cal. 2d 167, sufra,
was concerned with a case where the plaintiff was in-
jured when he drove its automobile to a garage for a
carburetor adjustment. The gear shift on the automatic
transmission was in neutral. Plaintiff got out of his
car and was watching the mechanic employed by the
defendant work on the carburetor. While this work
was in progress, the car suddenly lurched forward and
struck the plaintiff. The Honorable Stanley N. Barnes
refused to apply the doctrine of res ipsa luquitur and the
Supreme Court of California affirmed this. rating, stat-
ing at page 170:
“Tt was at least equally probable that ‘the accident
was caused by some fault in the mechanism of the
car, tor which defendants were not liable, as that
it resulted from any negligent act or omission of
the. mechanic. Accordingly, it cannot be said that
it is more likely than not that the accident was
caused by the negligence of the defendants and.hence
the case was not a proper one for the application
of the doctrine of res ee ee. iA a
A IS ;
ee
ao
The second petegts of the doctrine relates to the
control of the inst tality. Obviously the jet aircraft
was not under the exclusive control of the manufacturer .
at the time of the accident. The pilot and the pilot alone
was the only one who could regulate the various instru-
ments, the stick, and other mechanisms which obviously
regulated the airplane in-every phase of its movement,
whether it related to the aircraft itself, the fuel system,
the trim of the plane, or any of the other factors which
may have in any manner involved the over all operation
of the aircraft. The pilot alone and no one else was in
control of the trim actuator setting, which later was
found to have been set improperly.
The third requirement for the application of the doc-
trine of res ipsa loquitur in California requires that the
decedent must not. have done anything himself which
could have brought about the accident.
There was abundant evidence that pilot error, negli-
gent or non-négligent,’ could cause the jet plane to crash.
Pilot error negates the concept that there can be any
control in the manufacturer. The following factors ap-
pear in the evidence: |
a. A throttle burst, pilot produced, could cause
a flame out, t.¢., @ stopping of the jet power plant.
b. The pilot could accidentally or intentionally
cut the fuel supply.
c. The pilot could accidentally or intentionally
hit the very sensitive stick and move it in the wrong
1The striking significance of the problem relating to jet pilots
is pointed up in the Journal of the American Medical Associa-
tion, Vol. 165, p. 905 (Oct. 19, 1957) where it is stated: “The
increasing number of unexplained jet aircraft accidents indicated
a need for an experimental investigation of sible physiological
factors leading to a pilot's incapacity for ak flying.”
—15—
direction; for example, as the trial court himself
pointed out, the pilot may have fainted, in which
event there would be no negligence on the part of
the pilot, and yet clearly no liability on the part of
the appellant.
d. The pilot was a relatively inexperienced man
in the flying of jet aircraft. He had no current
instrument white card. He had not flown ia jet
airplane for almost two months before the accident:
If he took off under visual conditions (which he
might well have done since the fog bank had not
yet reached the eastern end of the strip) and then
tried to switch to instrument flying when hé hit
the fog bank, the evidence from skillful pifots was
that this was a most hazardous procedure and could
well affect the flight of the plane.
e. If the pilot took off with instruments ‘n ac-
cordance with his flight plan, the uncontradicted
evidence was that the plane was not warmed up
sufficiently to stabilize the instruments needed for
safe instrument flying. (No warm up is necessary
with jet aircraft for mere visual flying.)
f. The evidence demonstrated that after the
crash the trim actuator was improperly set. This
could only ‘have been the result of pilot error and
comports with the actual physical facts at the point
of impact and the angle of the plane. :
g. Weather conditions were adverse. A fair
inference might be that the pilot didn’t warm up
sufficiently because he hoped to become airborne
before the rapidly approaching fog bank reached the
westerly end of the runwayt
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illite
h. Going into’ the fog bank the pilot had visual
contact (even though thé flight plan called for
instrument flight) then had to switch to instru-
ments—this transition at high speeds, may have
caused the pilot to react unconsciously and affect
the control stick. - : | 2
i. Any blow . on ihe: throttle would affect the
plane’s roperation; it can be moved backward or
forward with very little effort.
The fact that the decedent was entitled to the pre-
sumption of due care fu; his own concerns in no manner
eliminates the last mentioned requirement for the appli-
cation of the doctrine and any such specious theory
was forever laid to rest by California Courts in the
case of Spencer v. Beatty Safway Scaffold Co., 141 Cal.
App. 2d 875 where, despite the fact that the Court held
the plaintiff to be entitled to the presumption of due care,
and thereby relieved of any charge of contributory negh-
gence, the presumption would not be used to supply the
third element set forth by the Supreme Court as a
requirement for the application of res ipsa loquitur.
The court stated at page 882: “Res ipsa loquitur does
not apply. /t does not appear that the injury was not
caused by a voluntary action of the appellant. Ybarra v.
Spangard, 25 Cal. 2d 486. From the events recited
above, and from the allegation that the appellant went
upon the bleachers to pull the cover down, it would not
be irrational to conclude that his voluntary act was the
cause.” (Italics added!)
It is respectfully submitted that there is no reasonable
basis for distinction between the Beatty case and the case
at bar. The decedent was in sole and exclusive control
of the jet aircraft. The facts have already been set
—17— ~*~
forth relating to his failure to have a current instru-
ment card; the fact that he himself could have caused the
throttle burst which in turn would cause the flame out;
_ his unfamiliarity with the particular aircraft; the fact
that he himself could have accidentally cut the fuel
supply; the fact that he himself could have accidentally
or otherwise hit the very sensitive stick, causing ft to
move in the wrong direction; the possibility that he may
have fainted or blacked out; his relative inexperience
with jet aircraft; his takeoff under circumstances ’in-
volving an instrument flight where he had not warmed
up the plane sufficiently to stabilize his instruments; and
evidence that would indicate that the trim actuator was
improperly set. Other possibilities have been sect forth
at an earlier point herein.
Any or all of these things, plus other conduct which,
of course, would be unknown to anyone connected with
this litigation, may have caused the frash in question.
These cases are in keeping- with the fundamental prin-
ciple that the presumption of due care cannot be used
by a plaintiff to establish negligence. Thus the Court
_ States in Ketper v. Northwestern Pac. R. Co., 134 Cal.
App. 2d 702, 286 P. 2d 47:
“Tt is true that respondent is entitled to the pre-
sumption that deceased was exercising due care for
his own safety, but as a corollary it does not follow
that indulgence in this presumption leads to the
conclusion, or presumption, or even inference, that
appellant was negligent, or that this negligence was
the proximate cause of death.” (P. 711.)
See also: Looney v. Metropolitan R. Co., 200 U. S.
480, 26 S. Ct. 303, 50 L. Ed. 564, where this court held
that the presumption of due care cannot be used to
establish negligence on the part of a defendant.
arene ewan nd
—_|/8—
IIT. | .
Phe Decision of the Court of Appeals Is in Conflict |
With the Decisions of Other Cases Decided, by
Various Circuit Courts of Appeal, i.e., the Cases
of Williams v. United States, 218 F. 2d 473 (Sth
Cir.) and Morrison v. Le Tourneau Co., 138 F.
2d 339, Where the Fifth Circuit Court of Appeals
Refused to Apply the Doctrine of Res. Ipsa Loqui-
tur to the Crash of Aircraft, and,Particularly the
Williams Case, Which Involv e Explosion
and Crash of a Jet Aircraft.
. . ;
The instant case, although it does not discuss the
doctrine of res ipsa loquitur, must of Giecessity be predi-
cated upon this doctrine since the evidence fails to reveal
any negligence on the part of the defendant manufac-
turer. In the case of Williams v. United States, 218.
F. 2d 473, a case decided by the Fifth Circuit, a jet
bomber caught fire and exploded in midair with no sur-
vivors. Plaintiffs relied upon the doctrine of res ipsa
loquitur. The Circuit Court rejected the pation of
- the doctrine, Saying at page 476:
voke this doctrine must stand or fall upon its own »
facts. Res ipsa loquitur is a rule based upon human
experience, and its application to a particular situa-
tion must necessarily vary with human experience.
A situation to which the doctrine was not applicable
a half century ago because of insufficient experience
or lack of technical knowledge, might today fall
within the scope of the rule, depending upon what
experience has shown. The concept presupposes
that the defendant, who had exclusive control of -
the thing causing the injury, has superior knowledge
=
a i cial
—19—
Or means of information to that possessed by the
plaintiff as to the cause of the accident. Jt is not
enough that the plaintiff show that the thing which
injured him was in the exclusive control of ‘the de-
fendant, he must also show that the accident would
not have occurPed in the ordinary course of events
sf thé defendant had exercised ‘due care. Often-
times experience in a particular situation is so uni-
form and well established that it is not necessary to
prove this by extraneous evidence. However, such
is not the case here. We have no knowledge judi-
cial or otherwise, of what would cause a jet airplane
to explode in midair while in flight. In the absence,
as here, of evidence showing that’ such an accident
would not occur except for negligence, there is no
basis for a recovery. The trial court should have
granted the Government’s motion for judgment on
this ground.” (Italics added.)
he
The principle of this case is in full accord with many
California cases. ae onset
For other ‘Federal-Court cases refusing the applica-
tion of res ipsa loquitur in airplane cases, see:
Morrison v. Le Tourneau, 138 F. 2d 339 (Sth
Cir.) ; 5
‘Cohn v. United Air Lines, 17 Fed. Supp. 865;
Davies Flying Service v. United States, 114 Fed.
Supp. 776.
ee }
On
Gg
————
The Writ Should Be for the Further_ Rea
That the Verdict Palpably oor
the Evidence That It Cannot Be Sustained on
Rational Grounds. It Wasi\a Flagrant Miscarriage
of Justice and the Refusal to Set It Aside Was a:
Clear Abuse of Judicial Discretion Which Should —
Be Corrected by This Court.
, The jet plane in question ‘was manufactured accord-
ing to Army specifications and flown by an Army pilot.
It was owned by the United States. .
No.case involving manufacturer’s liability fas come
to petitioner’s attention that has gone as far as the
opinidn of the Court of Appeals, barren as it must be
of any applicable authority. It is contrary to the de;
cisions of the State of California, of other Circuit
—€ourts of the United States, as has been pointed out,
and is-in conflict with the decisions of this Honorable
Court.
This Court has repeatedly held that where there is a
complete absence of , probative facts to support: the con-
clusion reached, the error is reversible. A judgment
cannot be predicated ‘igpon. pure.,spectlation and-conjec-
ture. In Chicago M. & St.-P.,Ry. Company v. Coogan,
- 271 U. S. 472, this Court said:
“It is the duty of the: trial judge to direct a
verdict for one of the parties when the testimony
and all the inferences which the jury reasonably
may draw therefrom would, be insufficient to support
a different finding. Bohimere & Ohio R. R. Co. v.
Groeger, 266 U. S. 521, 524. When the evidence
and the conclusions which a jury might fairly draw
from the evidence are taken most strongly against
the petitioner, the contention of respondent that the
=
bent pipe caused or contributed to cause the death
is without any substantial support. The record
leaves the matter in the realm of speculation and
conjecture. That is not enough. Pauling v. United
States, 8 U. S. 219, 221; Patton v. Texas & Pacific
Railway Co., 179 U. S. 658, 663; Looney v. Metro-
‘ politan. Railroad Co., 200 U. S. 480, 488; St. L. &-
Iron Mtn. Ry. Co. v. McWhirter, supra, 282 (33
S. Ct. 858); St. Louis-San Francisco Ry-v. Mills,
271 Us S. 344, decided May 24, 1926.” .
‘Sée also:
Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 749, >
. 90L. Ed. 916.
Probably this Court i passing upon the liability of a
manufacturer and in referring to the famous case of
McPherson v. Buick Motor Co., 217 N. Y. 383, 11 N. E.
1050, best stated the applicable principle as follows:
“There must be knowledge of a danger, not merely pos-
sible, but probable.”
Dalehite v. United States, 346 U. S. 15}at 42.
The record in this case is utterly devoid of any evidence ;
that petitioner, North American, had any knowledge
that there was anything wrong with the airplane in
question, either possible or probable. On the contrary, —
the evidence indicates that North American had inspected
this plane in every facet of its development from the
time its manufacture was started until it was delivered.
Each part was progressively inspected, the components
and all of the systems. At least 225 inspectors were
involved in these part by part inspections of the aircraft
in question. There is no evidence to show. that the
defendant was negligent in connection with any of the
inspections.
a
—_— = Bs
The difty of the manufacturer has already been ad-
verted to, but more recently has been re-defmed in the
case of Maryland Casualty v. Ind. Metal Products Co.,
203 F. 2d 838 at 842 (8th Cir.), where the Court states:
“It may be stated as a general rule that & manu-
facturer is required to « ercise reasonable care in
manufactaring an article w iich if carelessly manufac-
tured, isJikciy to cause more than trivial harm to
those who wse it in the manner for which it is
manufactured Restatement of Torts Sec. 395.
~ However, the defendant is orily required to exefcise
reasonable care, and the burden is on the plaintiff
‘to show that the defendant has: failed to exercise
such care in one or more of the particulars in. which
reason@ble care is required for the protection of
‘those whose safety depends upon the character of
the chattel.” .
If the true cause of the accident was a mystery, how
can it possibly: be said that the conduct of the pilot was
‘non-contributory? There is no legal legerdemain nor
resort to semantics which can solve the mystery more
aptly pesed, as te how the Court of Appeals in a situation
where their’own evaluation of the facts suggested that
the true cause of the accident was a mystery, could still,
as inherently in its opinion it must have dope, concluded
that the conduct of the deceased pilot was non-contribu-
tory. - How can it be said that the crash was.not due to |
some mechanical defect for which appellant North Amer-
ican could not be responsible, such as some latent and
hidden defect contained within the engine itself which
was built by General Electric Company and merely ih-
. stalled in the aircraft after being checked? There is not
ore scintilla of evidence that the check’ made of the jet
——
engine itself was not adequate or not in keeping with the
standard of practice in the industry.
The law relating to the liability of a manufacturer who
incorporates a component part, such as an engine, is well <~
stated in O’Rourke v. Day and Nite Water Heater Co.,
31 Cal. App. 2d 364, where at page 370 the Court
affirmed ,a judgment notwithstanding the verdict, holding
that as a matter of law the manufacturer was required
to exercise only ordinary care in connection with. its
examination of the camponent parts involved in the
finished product. The court states at page 370:
“The article in question, the safety pilot came to
the respondent as a sealed unit. Its very nature pre-
cluded an internal inspection and any such inspection
would have necessarily. destroyed the adjustment of
its parts, which was essential to its operation. In
sucha case as this the rule relied upon by the appel-
lants does not require the making of inspections and
“ tests of this complicated and delicate deve which
destroy the usefulness of the article.
“We conclude that the rules in question did not
require the respondent to make internal inspections
and tests of this complicated and delicate deyice
which came to it finely adjusted and sealed, and that
under such circumstances such external inspections
and tests as were possible were all that was required
of it in the exercise of ordinary and reasonable care.
There being no evidence of negligence on the part
of the respondent, it follows that the action of the
Court was correct.” bd
wiitien
Conclusion.
In the judgments below, the Court of Appeals and the
District Court have decided a‘ question of major im-
portance to the entire aircraft industry and to the United
States Government as the sole purchaser of military air-
craft; decided it in a manner contrary to the .settled
decisions of the Supreme Court of the State of California »
and contrary to countless decisions from other Circuit
Courts relating to the liability of a manufacturer. The
record is devoid of any evidence to support ‘the verdict: —
Only the trial judge’s misconception of his own powers
on a motion for a new trial have forced petitioner into
the position in which it flow finds itself. The verdict
below was so plainly contrary to the evidence and the
physical facts that it cannot be sustained on any rational
grounds. The multiplicity of the methods by which the
deceased pilot could have brought about the fateful crash
of the aircraft of which he was in sole control, demon-
State the frailty upon which this judgment rests, and
demonstrate the utter refusal of the Court of Appeals to
follow. the principles of law laid down in the California
cases heretofore referred to. It is submitted accordingly
that this Court should grant this Petition for Writ of
Certiorari and: should reverse the judgment below.
Respectfully submitted,
Joe CrIpeEr, Jr.,
Attorney for Petitioner.
Associate Counsel ne! members of this
Court: °?
ELBER TILSON,
DonaLp RuppPeE and
-HENRY E. KAPPLER. .
APPENDIX.
Opinion of United States Court of Appeals, for the
Ninth Circuit.
North American Aviation, Inc., a corporation, Appel-
lant, vs. Wanda Lee Hughes and Randall L. Hughes, a
Minor, by his Guardian Ad Litem, Harry Sutton,
Appellees. No. 15,292.
Aug. 9, 1957. |
Appeal from the United States District Court for the
Southern District of California, Central Division.
Before Orr, Lemmon,’ and Chambers, Circuit Judges.
- Lemmon, Circuit Judge.
_ Man or machine—
' Which was responsible Yor the jet airplane crash that
caused the death of the pilot, whose widow and whose
infant son recoveréd $125,000 frem the manufacturer of
the machine?
If the man was responsible for the accident, his widow
and his son, plaintiffs below and appellees here, cannot
| “recover, and reversal results.
If the machine was defective, the manufacturer—the
' defendant below and the appellant here—as responsible,
and the judgment of damages must be affirmed.
The action was one for wrongful death. The appel-
lant filed a motion for judgment notwithstanding the
verdict or for a new trial. The lower court denied both
motions, and gave judgment on the verdict. From that
judgment the present appeal has been taken.
—
|
e
=
1. The Stipulated Facts :
An F-86F aircraft, manufactured by the appellant, and
_ piloted-by the decedent, First Lieutenant Fred L. Hughes,
crashed at the west end of the Los Angeles International
Airport jthmediately after takeoff, at about 3:27 p.m., on
December 18, 1953.
This aircraft had “been delivered to the United States
Air Force, after acceptance by the latter, and Lieutenant
Hughes was flying it from the appellant’s factory, located
at the Airport, to Nellis Air Force Base, Las Vegas,
Nevada, when the accident occurred.
The machine was completely demolished. and the pilot ~
instantly killed. The plane was airborne before it crashed.
In addition to these stipulated facts, each party argued
that there were certain additional facts favorable to their
respective contentions. Those additional facts will be
stated below, under appropriate headings.
2. The Appellant’s Version Regarding Certain Addi-
tional Facts. '
The printed transcript of record in this case consists of
885 pages. Obviously, an independent summary of the
evidence cannot be attempted here. Accordingly, we give
below the parties’ respective versions of. additional facts
not covered by the stipulation, supra. The es
version is given first.
oe The appetlant’s aircraft was known as the “Jes F-86F.”
Although | there are numerous landing strips at the Air-
port, where the crash occurred, the pasticular strip in-
volved here was about 8500 feet long, was paved, and ran
in an easterly and westerly direction.
bn
a
The evidence is uncontradicted that the weather at the
time of the accident was poor. Visibility was obscured
by reason of a heavy fog bank which was rolling in from
west to east. Flight visibility was described as “zero,”
and “instrument weather” prevailed. The weather was so
bad that no “Army Air Force acceptance flights” were
performed on the day in question, and some 18 scheduled
flights were canceled.
At the time of his death, the pilot was 25 years of age.
He had acquired a total fiying time of 627 hours and 5
minutes, of which about 279 hours were spent as a
“student. His total flying time in the jet aircraft was
“comparatively slight,” and most of his jet plane experi-
ence was in visual rather than instrument flying. As of
June, ‘1953, he had only 137 hours of instrument flying.
The Army Air Force issued to its pilots two types of
cards: a green card, “which is something like a rank,”
and requires at least 500 actual instrument flying hours;
and a white card, “which permits no element of discretion
on the part. of the pilot; it merely shows a basic instru-
ment qualification.” The decedent never held a green
card, although he did possess a white card, which was not
current.
The aircraft contained about 1,000,000 parts, and was
capable of exceeding the speed of sound, 735 miles per
hour. A jet aircraft requires no warm-up as do other
planes when the flight ts conducted under visual rules.
When, however, the flight is to be on instruments, Lihe
motor“must be warmed up for at least five minutes, to
stabilize certain instruments.
Thousands of these planes had been delivers, and there
was no evidence that any of them had ever had any
trouble.
;
;
a
nines
Throughout the course of the manufacture of the plane
it is minutely checked and inspected in all of its various
systems. On the first flight it was discovered that there
were three minor “squawks,” none of which had anything
to do with the take-off or operation at low speeds. Take-
off speed was only 110 knots an hour. All the “squawks”
were inspected and checked off or corrected.
Although the pilot who flew the Army Air Force ac-
ceptance flight was an employee of the appellant, this
method of operation Hkd long been in existence between |
the appellant and the Government.
In addition to the appellant’s inspectors, the Army Air
Force also has inspectors of its own, who make certain
independent inspections. Altogether, there were three
inspections by the appellant’s flight inspector. ©
The fatal flight was scheduled for instrument take-off,
and the decedent had filed a flight plan with the tower.
He was seen to inspect the plane, climb into the cockpit,
start the motor, and taxi the machine to the east end
of the runway. There is considerable smoke connected
with a jet plane. The pilot stopped the machine there
for a very short time, probably less than a minute. ) He
then took off, as the fog bank was moving in and cover-
ing the west end of the runway.
The take-off appeared to be normal. One witness de-
scribed the plane’s height as 5 to 25 feet at the moment
that it disappeared into the fog bank. At a point about
125 feet west of the west end of the runway, the jet
crashed to the ground. A fire developed at that point
immediately, and spread westerly across Liricoln Boule-
vard, burning the grass and dirt, and then searing the
asphalt surface of the highway. After crashing, the
Ginn
plane proceeded in a westerly direction, tore throug’ the
fence on the east side of the Boulevard, went across the
highway, broke through the fence on the westerly side
of the boulevard, and proceeded about 200 feet into a
vacant field, where the major portions of the plane-
fuselage, door assembly, engine, and other larger parts—
were found. At the moment that the plane struck the
ground there was an explosion, followed — by
a fire.
William L. Pitts, procurement quality control inspector
of the Air Force, immediately took over to “protect the
interests of the Government.” A team of experts from
_ the appellant, the Army Air Force, and General Electric
be
co-ordinated their activities in an effort to determine the
cause, if possible, of the crash.
The appellant produced all of the available ndamc tides
participated in the. investigation of the accident. They
agreed that it was not due to any failure of the aircraft
“or its component parts.” ~ |
The evidence that “pilot error,” negligent or non-
negligent, could cause the jet plane to crash. The appel-
lant lists nine [causative?] “factors” that it says appear
in the evidence, including the fact that the pilot was a
relatively inexperienced man in the flying of jet aircraft.
3. The Appellee’s Version of Certain Additional Facts.
_ The pilot was a veteran of 100 combat missions flown
in jet aircraft in a foreign theater. He flew 144 hours
combat time. Among his decorations were the Distin-
guished Flying Cross and Oak Leaf Clusters.
His experience inclided combat in a F-86F airplane,
the same type of machine in which he was killed. He had
|
srneantiisiatueniadaiaill
_ a or
»
- om
been qualified for instrument flight for three yeads) and
had been an instructor in instrument flying.
From April 19, 1953, to May, 1953, he was suspended
from flying for unspecified physical reasons. Such sus-
penson may result because the flier has developed a com-
mon cold. )
The weather conditiohs were normal jen the Los An-
geles International Airport. Visibility was: officially fixed
at one-half mile. The air traffic moved all afternoon both
before and after the accident without interruption. Hun-
dreds of planes of every type, including military, private,
and commercial, came and went on schedule. The only _
flights canceled because of weather were the test flights
of new military aircraft manufactured by the appellant,
because of an Air Force regulation prohibiting test
flights unless visibility is three miles or more. -,
Neither the instruments nor the jet engine needed to be™
warmed up. Some of the witnesses used the expression
“five-minute warm-up” in connection with an instrument
flight, but the matter was Clarified by the appellant’s own
chief production test pilot, whose testimony indicated that
the warmth of the engine has nothing to do with the
matter, since the instrument in question is the vertical
gyro horizon, which is operated electrically and is not
dependent upon the operation of the engine. It takes five
minutes for gyros “to come to speed.”
The plane was in the exclusive possession and control ©
of the appellant until Lieutenant Hughes stepped into the
~ cockpit.
There was evidence of carelessness in the process of ©
manufacturing and inspecting the airplane.
‘ —7—
/
The take-off was normal and at full power, and the
plane was last seen in an attitude of climb.
There is evidence that there were a “flame-out” an ex-
plosion in the air, a fire in the air, and then a crash.
The opinions of the experts, to the effect that the
crash was not due to any defect in the aircraft, “had no
affirmative foundation, but were based upon a failure to
find evidence of mechanical failure.” -
4. The Questions Presented
The appellant sets out four Specifications of Error,
which may be summarized as follows:
1. The evidence did not support the judgment ;
2. There was no evidence of appellant’s actionable __
negligence ;
3. There was 110 evidence that any negligence of the
appellant was the proximate cause of death; "
4. The trial court erred in denying the appellant’s
' motions for judgment n.0.V
The appellee, on the other hand, states—and we believe
correctly—that “In reality there is only one question
which is armen there is evidence to sustain the verdict
of the jury.” |
5. Summary of the Appellant’ s Argument
The evidence fails to establish any “actionable negli-
gence” on the appellant's part.
Although the appellees contend that the appellant was
guilty of negligence in designing, manufacturing, Sewell
cating,” and servicing the jet aircraft, they produced “
one scintilla” of evidence that there | was any defect in a
——————— |
wrens =
|
—8— &
particular aircraft, or that there had ever been any defect
or defects in any other machine of similar type manufac-
tured by the appellant, which would indicate negligence in
design or fabrication. |
Though conflicting in minor points, the testimony
“demonstrated” that a plane used by the Army for many
years and manufactured by the appellant, cras while
being operated . 3 “relatively inexperienced” jet pilot
“having no connection with appellant.”
a
The weather was “bad” and “foggy,” “and was ad-
mittedly instrument weather.” The pilot had no current
instrumer_ standing, although he was presumably at-
tempting to fly with instruments.
It is only by resort to the doctrine of res ipsa loquitur
that the verdict and judgment can be upheld, despite the
fact that the trial court properly refused to apply that
doctrine.
. 6. Summary of the Appellees’ Argument
‘A conflict appears at almost every point that the appel-
lant’s brief has treated as material. In each instance
it must be assumed that the version favoring the verdict
is the true one. | ;
Foamite was found on part of the electrical system as
the plane neared ‘inal assembly, indicating a fire. The
parts affected by the fire were not. replaced or inspected
for damage after the fire. This is indicated by the
presence of the foamite, “‘and that the only thing required
by the inspector was to clean it off.”
~Here is one of the ways in which the jury might have
considered the evidence to reach its verdict:
a :
After take-off, the plane was airborne with wheels and
flaps up and doorfclosed over the wheel wells. It was in
an attitude of climb, but not climbing‘ very fast. “This
suggests trouble.” A possible and perhaps likely source
of the trouble’ i is a broken or leaking fuel line.
The pilot may have had trouble with the flight control
system, and recognizj loss of power, sought to switch
to the emergency system. Before this could be accom-
plished, the leaking fuel may have been ignited by a
spark from the defective wiring or otherwise.
The pilot then “undoubtedly” lost control, sadn
because of an “explosion into the cockpit,” and possibly
because of the loss of the electrical hydraulic system, or
both, and a crash foiiowed.
The evidence is clearly indicative of mechanical failure,
which the circumstances indjcate ts the fault of the manu-
facturer. Negligence in manufacture and inspection is
evidenced by the signs pointing to’a fire in the fuselage
during fabrication. There being no evidence that the
cause was discovered or rectified or that any effort was
made to do so, the possibility of its happening again
may be inferred. Such a fire could well be the proximate
cause of the accident.
A plume of smoke rose 300 feet in the air—a certain
indication of an explosion.
The appellant's supposition that the wing tanks ex-
" ploded on contact with the ground is not supported by
the physical evidence, a large part of which points to
mechanical trouble in the air.
Sassenenussvenens anenuntnenmnnmneenenes
|
a
_ The jury was well supported by substantial evidence of
all types in-a_ conclusion “that mechanical failure caused
the accident—flame-out, explosion, or fire, or all three.
There was no evidence of possible pilot error.
7. Conclusion
Since, as we have seen, the parties correctly agree that
~. the problem here is factual, we have summarized some-
what fully the respective interpretations of the evidence.
Although the true cause of the accident will probably
remain a mystery, there appears substantial evidence to
support the appellee’s theory that the crash was due to
a mechanical defect which developed while the machine
qwas still in the air; in other words, a defect in the manu-
facture of the airplane, for which the —_— was
responsible. —
Accordifigly, the judgment is
A firmed.
(Endorsed:) Opinion. Filed Aug. 9, 1957.
Paul P. O’Brien, Clerk.
A“
c
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.