Brief of Beech Aircraft Corporation in Opposition to Petition — Prashker v. Beech Aircraft Corp.

Supreme Court brief1958

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— - ¢ bY Cte OF preme ¢ - K

kewted Bia oy aud” ob re c fr ry

NOV 2H 195

4 JAMt MS, Cler« |

IN THE - ——

‘Supreme Court of the United States

ee October Term, 1958.

Sete No. 476. ene, |

° GOLDIE B. PRASHKER, Executrix of the Estate of Nathan

Prashker, Deceased, and CHOICE EMBROIDERY &

oe. LACES, INC.,

a Petitioners,

BEECH AIRCRAFT CORPORATION and ATLANTIC ._

AVIATION CORPORATION, ae Lf

Respondents. PA

BRIEF OF TEECH AIRCRAFT CORPORATION IN

OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

a ‘ , ”

-. \ Fd + ‘

. . .

+ BN. Carpenter, II,

Lov Is J. FINGER,

WitutuM E. W IGGIN,

4072 du Pont Building, °

Wilmington, Delaware,

" J. WeL_tes Henperson, Jr.,

_ ,» Rosent EB. Jongs,

LA \ 1910. Packard Building, rlag

Philadelphia, Penna., | v

Counsel for Respondent Beceh Aircraft Corporation.

‘nternational, 711 So. 50th St., Phila 43, 47 .

: INDEX.

‘

"A. Oprnions Betow .

B QvesTION Prisestep ¢

C. CouNTER-STATEMENT OF THE CASE |.

i %

1. Introduction

2. Airplane Design’ Necessarily a Compromise

3. Instrument Flying (Weather Flying’) and Vertigo

4. “Clean” and “Dirty” Airplanes ,

5. Knowledge of Prashker and Wartings by Beech

6. The Accident |

D. SUMMARY OF ARGUMENT

E. ARGUMENT

lL. The Unanuaous Decision of the Two Lower Court-

on the Insufficiency of the Evidence Should Not He

Reviewed by This ‘Court

IL. The Direction of a Verdict in This Case Was Clearly

- Correct: . = °

A. As to Contributory Negligence (Pet. pp 15-18

B. As to Negligence

1) Alleged Neghgent Design (Pet. pp. 22-24)

2 Alieged Failure to Warn (Pet) pp! 19-22

IH. Evidence of Prior Accidents and Statistics Was Prop-

erly Excluded as Irrelevant. as. Well as on (nthet

Grounds; and Would Have Added “Nothing

Petitioners’ Case

A. As to Prior Accidents

Lb. As te Stattstres

IV. The Décision Below Is Confined to the Facts of the

Present Case, Does Not Adversely Affect the Kighit-

of Other Litigants.and Is Not Based Upon the Bind

ings of an Administrative Agency

F. Conciusion® +

“43

TABLE OF CASES CITED.

Allen, 13 CAB ie 375.

* Anderson, Admx «. Atlantic Constline Rules Ge: 350 U.S

807, 76S Cr 60, 100-L. Ed. 725°(1955) ........ poe

Amtonelh vo Tumolo, 390 Pa. 68, 132 A. i 2d) 285 (1957)

‘Barie v. Superior Tanning Co., 182 F. (2d) 724 (7th Cir. 1950 |

Baugham v N. Y.. Phila. & Norfolk. R., 241 U. S. 237, 36

eS A

Boehmety. Pa RR. Co.. 252 US 49, 40S. Ct. 409, 04

er ME IED Cn 5 way ew a k's 4 A TT Le

Bullen-v. DeBretteville, 239.F. (2c) S24 - «mh Cir. 1956 phi

Byrd v Blue Kidge Cooperative, 356 U. S. 525, 78S. Ct.-893

2L Ed. (2d) 953 (1958) réh. den. 357 U.S. 933.7% S.C

1366, 21. Fed. (2d) 1375 (A958) “ayes

Carver, 13.CAB Eo: cee ae poVEoere

Cities Service Co vo Dumap. 308 U.S. 208, OOS. Ct. 201, 4

L. Ed. 1% (1939)... a

De Fonde v. Revstone V alley vt ‘oak Co., 386 Pa. 433. 126 A. (23

oe se ae ee er 5

Dimence vy Pa RK. R. Co.. 19 FR. D499 (D.C. Del. ‘poset

trie Ka’ lroud Company v. Welsh, 242 U. S. 303, 37 S.Ct LI,

wt Ed 319 (Yo) oS, ee ee a, ae

Gibson v. Phillips Petroleum Company, 352 U.S. 874,77 S. C1

1G, + L. Ed (2d) 77 (1956) ..... ere eee

Gils v NOY. N: Ho & HOR.R.-Co.., 40. S. 515, 39 Suc

355, 63 L.Ed. 738 (1919) Puatiane Awacdihed a) a eed tos re

Hall v. Osell. 102 Cal. App. (2d) 49228 P. (2d) 293, 3 Nv

ae thee 1 C 1951)4.¢).,:............2.../

Hartshorn, 13-CAB Rep..410....... eos S000

: e we , ewm-c &e . : -

Jacob ¥ City of New York, 318 U.S. 752, 62 S. Cr? 854

EO Fo so hia whe wi pe on

Kent v. Parker. 8 Terry 151, 89 A. (2d) 133 (Del, 1952) -

omens 13 CAB Rep. Pee Hessen eee ate oe 25

a —

TABLE OF CASES CITED (Continued).

’

Lavender v., Kuri, 327 U. S. 045, 66.8. Ct. 740, 90 L, Ed 916 -

(1946)

_ Maher v. Voss, 9 Terrv- 45, ON A. (hy 4K) (Del, 1953)

Palmer v. Hoffman, 318 U.S. 109,63 S. Ct. 477. V7 L.. bed. 48

(1943) reh, den. 318 U.S. 799, 63S Ct. 707, 87 1. Ed

i 2G.) | ) ee POR TT ere Retake cies

Pokora v. Wioash Railway Co., 292 U.S. 98) 54 5S. Gt. Sei), 7%

ba Sa: BER CEG) 2 i. foe ages

Rank v. Metropolitan Edison Co., 370 P, a. 107, S7 A. { ed TUX

(Sup. Ct. 1952)". Ne ene es ee SRN Ty a

Rogers’ v. Missouri Pacific R. Co., 352 LU. S. Se zz s eS

"443, L. Ed. 42d) 493 -(1957). 2.20... aaa

Swattord v., Atlantic Coastline RoR. €o., 350 U.S. 807. 70°

S. Ct. 60, 100 L. Ed. 725 (1988) or. ¢

T A. T. Fiving Service v. Adamson, 47 Ga. App. (108, Toa.

SE. - S (Ct: App. 1933) ..:......%. Te yee

Tennant vPeoria & PLU. KV. Co.; 321-U. S. 29. 64 S.°Cu*'*

409, 88 L. Ed. $20 (19'4) (Pet. p. 24).,.

Union Trust Compary v. Eastern Airlines, 350 U. S0 907, 70.

S. Ok 100, ML. BA 796 (7985).

U.S. ¥ American Ry. Exp. Co., 205 U.S. 425, 445. €t. 500.

opt. Ea: Wy (9604)... 2... mre

Wooschenko v. ©. Schmidt & Sons, 2 oN. J. 209, 66 A . 24s 1 xO)

Si Me | ee rt peg Rete eee . 23, :

Yoffee v Pennsylvama Power & Light C ompany, 385 Pp a. 520,

123 A. (2d) 636 (Sup.Ct. 1567-0000.

Zotter v. Lehigh Valley R. R. Co., 280 Pa. 14) 124 Atl 284

stp Ce F924) EER TC ivr ie Be re CE

¥s

MISCELLANEOUS..

United States Constituuon, Seventh Nn Fe ons 4 wa

Civil Air Regulations : ;

14. FL R. § 1.12 hy ee re See} ee eey keane

4. FR. $1.16 2.20.2... ees. PR eer eT ere Tey

Oe. FB UA ike ics, OEP ATT

WE FR O80: 03355. Lpaws Oe Kawe eaawieannenaes

oe PU were eer Se C ree yer re eae

14 CF. R. § 43.68 saleracdeareccececes avicaeeseente

eG, ie ON HA 60.040 coed SOR coe FA oaaree

'14.C. F. R. $60.30 0.2... Pon arene iN ea neey

SCP RN 8 etl

2€. J. 5. Aerial Navigation, § 21 :..........sescewseeeees

ie ree Rule 43 ....55: Fe Rhea ng rh! APR re

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IN THE

‘Supreme on of the United States.

—_————_—

Ocroper Term, 195s

No. 476.

GOLDIE B. PRASHKER, Exéccrrix or tur Esrate or

Natuan Prasuxer, Decrasep, axp CHOICE EM-

_ BROIDERY & LACES, INC.,

Petitioners,

BEECH AIRCRAFT CORPORATION asp ATLANTIC

AVIATION CORPORATION,

Respondents. —

BRIF¥ OF BEECH AIRCRAFT CORPORATION IN

OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

A. OPINIONS BELOW.

- The Opinion of ‘the ‘Court of Appeals for the Third °

Cireuit has, now been | reporte «land is a at 258 F. 2d 608.

Se .

B. QUESTION PRESENTED.

The only question presented by the ree ‘ord is whe ther in

- this action for neglige fiee, the Court cf Appeals has sa

tioned a de nial ‘of petitioners’ right to a jury trial i in:

(a) U pholding a «lirected verdict for Respondents

(defendants ‘below) where Petitioners’ (plaintiffs

‘ below) own evidence conclusively established the

Question Presented

. : .

contributory negligence of Prashker (petitioners’

decedent) (a complete defense under the applicabl:

Pennsylvania law) and failed-completéely to estab-

lish any negligence on the part of either " Respoiid:

ent; and a :

('o) Ridling thet, in-the Malit of the fact that sll sin

planes, when subjected to excessive stresses, will

disintegrate in the air in the same manner and for

the same reasons as the Prashker airplane, anc in

the lighi .. cue fact that all kinds of airplanes are

at times subjected to such stresses and do similarly .

. disintegrate, and in the light of other factors, evi-

dence of such accidents does not tena to prove. the

existence of a design defect. te

; We do not agree that question 3 set forth in the Peti-

tion for Certiorari (p. 3) raises a question for review, since

the lower courts did not reach this question at all. We do

- agree, however, that if the Petition for Certiorari were .

«ranted, the question of the effect of the approval and

certification of the airplane by the CAA weuld have to he,

briefed and-argued on the merits since we contend that the

judgments of the lower courts are sustainable on. this

xround. , °

1. The judgment should not be reversed if there is any ground

_ upon which it can be sustained evén though not passed upon by t!:

court below U.S. v. American Ry. Exp. Co., 265 U.S. 425, 435, 44

S. Ct. 560, 68.L. Ed. 1087 (1924); Bullen v. DeBretteville, 230

(2d) 824 (9th Cir. 1956): Barie v. Superior Tanning’ Co., 182 ¥.

‘ (24) 724 (7th Cir. 1950).. :

Counter-Statement of the Case “y 3

C. COUNTER STATEMENT OF THE CASE.

1. Introduction.

By the very nature of the way petitioners hi ive pre-»

se nted their Statement of the Case it is impossiole for, this”

Respondent, without a full Coanter- Statement to correct

inaccuracies and omissions therein.

“This is an action for the destruction of a Model D

Beech Bonanza airplane and the death of its pilot, whe was

the president of a family corporation which‘had purchased -

and owned said plane: for use im its corporate business.

_ The principal damages sought are under the Pernsylv ania

‘Survival Avt, and are based primarily on the loss of sub- .

stantial earnings of the decedent?

- The basic contention of petitioners in this case is that

the fundamental design. of thes Bonanza model airplane is

unsafe, and. that it was this unsafe design — ‘with a

faifure to.avarn, that eaused Prashker to lose ‘eontrol of

the airplane when, although he was not capable of flying

on instruments, he piloted the plane into instrument weather

conditions.. There is no claim that any of the.plane’s ma-

terials were defective (S0b) of of insufficient strength (8b),

or that the plane in any way violated any of the voluminous

- requireme nts of the CAA and CAB w hich govern its design,

manufacture, aiid sale (8b, 70e).

| Petitioners place their principal reliance upon tendered .

proof.that the airplane has suffered previous accidents when

some of the pilots lost control of the airplane in adverse

weather conditions, and upon. tendered statistical proof

‘ 3.

Petitioners refer to their action for w rongful death (Pet. p. 5).

Ween it was conceded by their attorney that no damages had »

been shown under this part of their claim (165c). No proof of

funeral expenses was ever made. (“Pet.” refers to Petition for

Certiorari. Page references accompanied by letters are to the appen-

dices filed in the Court of Appeals, eg., 165c. Letter’ “a” refers: to

Petitioners’ Appendices ; letter ‘““b” sedis to Respondent Atlantic’s

Appendix ; letter, “‘c refers to this Respondent Beech’ . ne: )

ail

4 7 Counter-Statement of the Case e

relating to alliged comparative ‘fates of failure. Petitione TS

contend that this data demonstrates a special.danger in the

Medel D Beech Bonanza. , The tendered proof, Although

_ perhaps plausible to one who has not flown an airplane and ¢

“is not familiar with aeromauties and flying conditions, is

without probative merit when considered against the back,

- ground of fiving haz .rds and acraalynamic theories and

practices w hich underlie this.ease and were presented to

-.the courts and jury below. And the tendered prapf has no .

bearing whatsoever upon the principal gr ound of decision

“in beth lower courts--the conclusive showi ing of decedent’ .

~ eontributory hegligence. : ,

This case involves primarily flying conditions of. which

only flyers have a first hand knowledge and understanding.

‘It can be co a in the light of testimony by such’

flyers, and in the light of conceded aerodynamic theories

“and /practice.

Because ‘of. thm phasis: placed by petitiofiers upon

‘matters thal dre apt io be misunderstood by: those not

familiar with the risks and conditions of flight we are eom-

pelled to deserihe the circumstances 's of this accident in full

and to state the aeronautical principles which underlie this

entire case, and which were clearly poe ‘by petitioners’

Own witnesses to the Court and jury ll ae

a Airplane Design Necessarily a “Compromise. .

As the Court of Appeals recognized in its opinion (Pet.

a) a commercial airplané is essentially a compromise (sb,

29b-30b, 32b; 35b). Since an airplane must: be light enongh,

to get off the grcund, and to travel with desirable speed, the —

strength of its parts must be limit d. On the other hand, it

mist be strong. enough to’ withstand stresses “up to a pre-

3. In a desperate effort to’ bolster their case, petitioners have re-

-peatedly gore outside the record and inserted extraneous matter to

influence the Court. Glaring examnles of this patent abuse are found

«in the Petition p. 3 (footnote 1), p. 25 ‘(reference to accide: Its as to

which no proof was tendered by: petitioners } . :

‘

Counter-Statement of the Cige- ae

determined” limit, and to carry the loads for which it’ is

designed. The. skill’ of the aerodynamicists has not yet

devised (and*probably never will devise) an airplane aight

enough -to provide efficient transportation which cannot

literally be torn apari in mid-air when subjected to strains

~-eaused by the pilot’s loss of control of the airplane in ad-__

yerse weather conditions (187a-188a). This danger is espe-

cially present when a pilot not qualified to fly on instruments

‘attempis to fly.in weather conditions where instruments

must be used. . ‘

These considerations were re adily eunceded by peti-

‘tioners’ own attorney in his ope ning remarks to the jury,

where he stated:

‘*. , . You can tear the wings’ off any airplarte

fying if. vou put it in a dangerous position, éxert ex-

treme loads on it. There isn’t an airplane flying that

you can’t tear apart. And that includes a DC-6, a

Constellation, any airplane that one of you-may have

flown in. You can take the wing off, if it sets into a

critical flying attitude, if loads are exerted upon it im

excess of what it will stand That doesn’t mean that

* those airplanes are not sufficiently strong or that they

are badly. aesigned,. Any airplane is @ compromise,

Jt can’t be too heavy because then it would not fly any-

‘thing (sic), and things of that sort. © 2 .°* ( Plaintiffs’

; - ning, Sb): (Emphasis supplied. )

The evidence subsequently. introduced by petitioners .

of . “= .

{respondents called no witnesses, since there was a directed

. Verdict at the end of petitioners’ case) emphasjzed and re-

‘mphasized the fact that, as. all pilots know, any airplane

can be torn apart in the air if excessive loads are’ iniposed

onit. As the case. unfolded, it became clear that -trucinral

failure in midair was rost likely to eceur when a pilot not

qualified to fly on instruments entered instrament weather

(‘blind flying?*)* conditions. —Los- of control of the ale

6 Counter-Statement of the Case

plane { is virtually inevitable’ sunder such cireumstane s, and

there usually ensves the imposition, of “éxcessive loads in

- an effort to regain control. °

To ‘assure the highest degree of safety”’ in air trans.

- portatio (49 U.S. C. $402) the CAA and CAB have bern

’ broad, almost dictatorial, power over air

transportation including, ‘among other things absolute eon-

trol of the ‘*design, materials, workmanship, construction,

and performance of aircraft, aircraft engines and propel-

lers,.as may b> required in the interest of safety’’. (49

ef S. (. {551(a)(1). See also 49 U.S. C. ¢ 425(a)). A

“model pl such as the Beechcraft ‘Bonanza is not ap-

proved by the CAA until the completion of many montis of

exteusive and searching testing, examination and super-

vision, beginning with the dvawing board and ending with

the final test flights (82b, Sla-S2a, 24¢) Contrary te thé

impression sought to be given in the Petition for Certiorari

(pp. 4, 27-28), the issuance of a type certificate not only

certifies to compliance with the applicable civil air reula-

tions, it is also official evidence **That the Administrator

finds-no feature or characteristies of the airplane which

renders it unsafe for the eategory in which it is certificated”

(14 CF. R. 66 3.10 and 1.12; 25-266; see also: 28e, 8Te-SSe).

Furtiermore, the CAB has ample authority to revoke a

type certificate if it afterwards finds the plane te be tinsate.

(494°, S.C. § 553; 14 CLF. R. £1.16; +00),

A type certificate was issued for the model D-35_ the

plane type invelved in this action (124b). ° Moreover, the

~particular plane involved in:this action was individually

tested in accordance with CAA regulations (14 €. F. RB.

‘§ 1.30-1.64) and an airworthiness certiticate was issued

for this plan: (S6b). A special voard converied by the CAA

found that the Bonanza tyve aivplane was no more difficult

to Ay on instruments chan other simila aircraft (36ce, PX

35). Also, the National Advisory Committee for Aero: .

navties (NACA) test flew the airplane and issued a report

‘

Je. Counter-Statement> of the Case.

concluding that the airplané was a satisfactory airplane

(BX 22; see 52e). Although the CAB has investizated the

Bonanza crashes and examined the NACA: report it has

never deemed it ‘necessary to revoke the type certificate

. (37e). :

3. Instrument Flying (Weather Flying) ont Vertigo.

Vertigo, as it applies in this case and to av lation, is ay

special type of disorientation in space which occurs when

thé pilot loses all visual frame of refererice. When a pilot

gets into the clouds or overcast Le loses sight of the ground

— and the horizon, and is confronted with faceless gray matter

_in every direction (128e-129¢). Being airborne, his other

senses cannot tellchim whether he is flying straizhi, whether

he is flying level, whether he is flying to the right or left or

whether he is in a sharp turn and a spirak dive (128e-129e);

in fact, his senses will deceive him. The disorientation that

ensues is called vertigo. “It happens regardless of what type

- - of airplane is involved when a pil it unqualified to use in-

struments loses his visual frame of réference (162¢-163é).

A clear and amusing description of this ‘taerial ver-

tigo’’ is found in a United States Navy Booklet (NAVAER |

0.80Q-32) which was furnished by Beech to all Bonanza,

purchasers (ineluding decedent in this case) and is a part

of Beech’s regular safety program (thé pamphiet entitled

“Vertigo Sense,”’ a part of Beech’s Exhibit No. 4, at 171e).

Instruments have been devised to enable pilots to fly

through clouds and the overcast with reasonable safety, but

“they ean he intexpreted and used properly only after mten-

sive and prolonged training, and even then only -when

- proficieney is kept up by current practice in we type of

plane to be flown (32b-35b). The pilot must be diveiplined

to ignore and reject what his sensés are. telling him and to

accept unquestionably the, evidence of his instruments.

Moreover it takes considerable training and continuous

practice to learn how to interpret and react to the instru.

ments. : :

8 — Counter-Statement ‘of the Case

Thy testimony and the exhibits show, what will happen

to a pilot who tries to fly ou instruments without instrument

training or without experience in the airplane which he is

| fiving (36b-39b; PX 13, the pamphlet ‘‘G’s’’, at 168¢). The

fil may get involved -in-a-procedtre owas ‘chasing

instruments’’. Because of the lag between the reading of

the instruments and the actual position of the airplane the

airplane gets on a course sifnilar to that of a roller coaster

' which results in enormous strains being placed upon it,

particularly in the dive phase. “Or the pilot may get into a

power spiral which also puts daggerous lwads on the air-

plane. In either case the probable result is disaster, since*

excessive loads on the aircraft structure will result in a mid-

air disintegration. a

Indeed, it is so hazardous to attempt a flight under

instrument conditions (i.¢., Where the pilot has no visual

frame of reference) without adequate training that it is

‘made specifically legal by appropriate Civil Air Regula-

tions (14 C. F. R. § 43.65; see also 14 C.F. R. §§ 60.40-60.49)

and any pilot who attemrpts instrument flight without first

completing the proper training, is in violation of the law

(46a).

| Captain Blakemore, a TWA pilot with approximately °

10,000 hours of flying time, and the only. pilot called by

plaintiffs to testify, stated that if.a pilot unqualified to fly

-on instruments:gets invelved in instrument weather, there is

" no-question but, that he will lose positive control of the air-

platie and that “regardless of waat iappens from that point

on, only a miracle is going to save him from some type of

harin”’ (46a). °

4. “Clean” and “Dirty” nite:

~The Beech Bonanza involved in this case is what i

- known as a ‘‘clean’’ airplane. This.means a fast, stream-.

lined airplane with a low emount of drag (18b).* ‘*Clean-

«"'. ness’’ is desirable in airplanes because it results in mor

; ‘economical rapid transportation.

Counter-Statement of the Case - 9

One of the common difficulties experienced by an un-

qualified pilot who gets into instrument conditions is for dhe

airplane to yet into a dive, With the result that attempts to

4 . +‘ : . , a

lower the speed of flieht produce eXxeesspHye ietts onthe

airplane’s structure and may result in attitudes ‘of the

airplane difficult to manage on instruments (17b;,PX 6).«

.“The rapidity with which such hazards increase is more

pronounced as the cleanness of the airplane increases”’

(17b; PX 6). A clean airplane. will pick up airspeed very

quickly without the nose being pushed down very far (36b-

“3Tb; 42b). On the other hand, a clean airplane affords

added safety in certain other situations. (124c-125¢e).

5. Knowledge of Prashker aad Warnings by Beech.

The record-is replete with evidence, alf undisputed, of

warnings hy Beech of the dangers inherent in flying a clean

airplane in instrument weather condit.ous. Actually,

* Prashker had already been apprised of most of this material

in the course of his flying training, and so Beech was re

peating and re-emphasizing points of which he was alresdy

aware, | a

Thus Prashker was warned, as he indeed already knew,

that all airplanes are a campromise, and thai any plane

might be pulled apart if an urqualified pilot’ sub¥ected it to_

stresses and strains through loss of confrol of the airplane

in instrument weather (22h-26b. 29b-32b, 35b). He -knew

and was warned by Beech of the particular dangers in-.

volved in flying in instrument weather by.a pilot unqualified

to fly on instruments, including the dangers of vertigo (17b,

25h, 32b-33b, 34b-35b, 36H-38b; se# PX 6, 7, 8, 13, 17 aud 18)

A vast amount of safety literature embodying th's material

had heen supplied to Prashker by Beech (18b-15b) pursuant

tv an extensive safety program undertaken by Beech at its

own expense (119¢) unparalleled anywhere in the industry

(186a).. In addition tg, pointing ‘out the dangers invelved

whep an unqualified pilot attempts to fly in instrument

10 | Counter-Statement of the Case

conditions, this literature emphasized the excéptional dan-

ver involved where the plane is aerodynamically clean (175,

36b-37b, 41b-42b). Indee dPra ashker was specifically aware

of. the characteristics of Clean airplanes as he had had

considerable previous experience with airplanes (10b) and °

was makjng-the typical pilot’s natural, progression frou

slower, ‘*dirty’’ planes to faster, ‘‘cleaner’’ ones 446b).

Prashker Was not qualified to fly an airplane or instru-

ments and he knew it (18a- 19a). In fact, Prashker admitted

over the radie in what were ‘virtually his last words before

th crash that he was‘not* ‘capable of flying instruments”

(302a). és f>

/ 6. The Accident. _

On October 5, 1958 atv 12:09 P. M. Prashker tock off

from the Allegheny County Airport bound for Cleveland, :

Ohio on a business trrp, accompanied by Harold Weissman.

At th time, the. ceiling at Allegheny was ‘‘estimated”’

(304a) to be 1800- feet above the ground and the visibility

was 4 miles (304a)." The weather report showed haze, light

rain, temperature 50° and dew point 48° (PX 26; 304a).

Prafhker neverthele < filed a visual flight rulge plan (VFR)

which, as we show in ofr argument (infra pp. 23- 24) would

have taken him within 50 feet of the ‘‘estimated”’ ceiling,

and if followed -would have constituted a clear violatien

of law. :

The.available evidence of the ensuing flight and crash

_is @ffeetively presented in the coldly onjective pages of the

Incident Report. (PX-26) prepared by the CAA (30a.

313a). The statement of the Co troller in the Allezhen)

Tower pe summarizes this evidenée: iM

12UTE Bonanza N216SD called Allegheny Tower -

liy radio and requested taxi-and take-off instructions.

I cleared Bonanza-68D to taxi Runway 5 or 30, pilot's

chvice; wind North 10 to 15 .and Altimeter. 30.00.

Bonanza 68D asked. fdr Runway 30° and for detailed

instructions as ‘he was unfamiliar with the field. |

Counter-Statement of the Case Pi %

issued detailed instructions to. Bonanza 68D. Control-

ler Armstrong, who was working the Flight: Data

Position, required. me. to find oat if N6SD would close

his flight plan with Cleveland Radio. - I requested this -

information from NéSD and the pilot advised that: he

- would close with ¢ ‘leveland Radio. / .

“209K. Bonanza 68D requested take-off clearance

and fT cleared him for take- of on Runw ay 30. The take

off appeared normal i in all respects, The aircraft was’

last observed on a straight out departure about. 3 miles

Northwest of the field and I advised him to use ¢ aution

passing through the Greater Pittsburgh. area as they

have considerable*instrument traffic.

*1222E to 1226E Bonanza 68D called Allegheny

Tower and advised that he was over the city-at 2300

et, unable to maintain VER and was climbing to aet

on top. 1 advised N68D that the last tops we ha® were

3800 feet and suggested that if he- was climb'n to

remain weil clear of all airways or get an ATC clear-

ance. The pilot advised that he was already in the G—

D— stuff and was clmbing. Controller Armstrong ad-

vised me that Ge cater Pittsburgh Tower advised. that a

Jet reported thy ‘tops at 33,000 feet and they had noth.

ing on ia-hetween layers. FE rolaved this to N68u, | then

requested the approximate position that N68D was

climbing up and he replied that he did not know his

position, I then requested of the pilot if he desired to

retuyn to the airpoyy, to which the pilot replied that. he

would, but did ao Se where he ‘was except that he

had entered the G—- Dam— stuff over the city: .L asked

N6ST) if he was capable of fiying instruments aud the

pilot replied! that he was vot qualified 1 then asked

N68D if he was VFR and the pilot replied NO, I cannot.

see a G— D-— thing iw this s—. Contre ‘er Armstrong

advised me to have the pilot count f6r a DF steer for

Pittsburgh Tower. I did and the pilot counted.. Con-

goon 4,

12 . Counter-Statement of the Case

troller oa adyised. me that Pittsburgh Tower,

‘aid to steer °25 degrees magnetic. I relayed this

heading to N68D. IT heard a carrier signal on the radio

"and then a very crackly voige first which -was barely

distinguishable and then 2 5. I repeated the steer, but

received no-acknowledgment.. ‘I transmitted to N2168D _

on all available frequencies in an attempt to reestablish

contact with the aireraft but was unsuccessful.

**1228E Controller Armstrong. answered the out-

side telephone and then advised me that a Mrs. Fine

“reported seéing an aircraft go down between Elizabeth

and Monongahels.— , ~

‘ * * «

‘From the pilot’s conversation it,was very evident

* that he was excited and: under considerable pressure

after he advised that he was in‘ the. overcast and.

throughout the short period that-we had radio contact

with him.

Ivan L. ‘{cCarrerty |

Ivan L. ‘icCafferty

Airway Operation Specialist”’

(Emphasis supplied.) |

The plane crashed about 8 milés south and slightly

east of Allegheny (63a, 76a). sA wing and a stabilizer had

come off the plane under. positive, upward pressure (61a,

72b, 76b). An examination of the vlane after the crash

show éd that tie flaps had not been iet down and that the.

landing gear had not been lowered (2le, 73b), despite

warnings Prashker had received to take such precautions

(25),°31b). The examination also showed that Prashker

an been flying With the plane trimmed for a sli ‘htly nose

down sures (76b-77b). «

. = ss .

. .

. ° -

. ° as

| . ‘ e

< .

‘ ¢

Summary af Argument 13

D: SUMMARY OF ARGUMENT.

: Two-lower, courts sustained the erani: ‘ng of a directed

* verdict on the ground that fair aninded jurors coula’ not-

honestly differ that there was contributory negligence which

would bar recovery under the applicable Pennsylvania law.

The lower Courts, in,so holding, clearly applied the proper |

test in determining whether there was sufficient evidence for

the jury, basing their conclusions upon review of a volumi-

| nous and highly complicated record. This-Court has held,

J particularly in diversity cases, that where two lower courts

* “have agreed that the evidence of contributory negligence,

and the inferences properly, to be drawn therefrom, do not

warrant submission of such issues to the jury, this Court

@Wwill accept those fi nding? i in the absence of plain error. No

such plain error is shown in this case, and therefore, no

. Violation of the Seventh Amendment exists in the direction

of thé verdict.

| : a:

een The Directed Verdict Was Clearly Correct.

(a) As to contributory ne gligence, it is agreed" by all

parties that the: plane was torn apart when Prashker lost

it control of the plane in an ov ercast. Prashker’s negligence

in getting inte the overcast was clearly shown by a take-off

in the face of marginal weather which wos thre ing to

get worse, adeption of a flight route which wou ke hint

ever the City of Pittsburgh wher> instrument conditions

were likely to prevail, failing to turn around in time to

a\ oid the instrument wéather, attempting to climb through

the overcast, and failing, to low-r landing géar and flaps

when he first got into instrument conditions. The negligent

7. character of these acts was established by Petitioners’ own

* - expert testimony, by Prashker’s violation of applicable

Civil Air Regulations and by. evidence of Prashker’s dis-

14 : Summary af Argument -

regard of specitie warnings from the respondent Beech.

When these are all considered together, the overwhelming

picture of Prashker's nesligece | isgross and shocking.

Petitioners’ argument that contributory neglfgence

was not conclusively ‘established beeause the evidence js

consistent with the ‘theory that Prashker ‘found himselt

trapped in bad weather-is refuted by the only expert testi-

mony elicited by Petitioners, which was that Prashker could

have seen the weather in time to avoid. it, and that bac

_. weather does not clase: in around i pilot so that he ix”

trapped, if he is exercising due ¢ sare for his own safety. The

* District Court specifically ruled that an inference ibe

Prashker had beee.xe trapped when the weather closed’ in

around aim was not justified on the record-and the Court of

Appeals took the same view.

Since the subject matter is not within the experience of

the ordinary juror, expert testimony controlled this point.

In the absence of ayything to,the contrary this ‘testimony

must be taken as conelusive.

“8

(b) As to Picher * en petitioners claim a- combination

af three factors which made the plane especially hazardous

to an unwary pilot and a failure to give warning of the al-

‘leged special hazards. These three factors are (1) oscilla-

tions which allegedly induce vertigo ‘n a‘pilot: (2) alleged .

light stick -forees which allegedly. ‘increase the danger of

structural failure; and (3) alleged extremely rapid accel-

erdtion in a nose down (dive) position.

As to the oscillations ahd vertigo, petitioners’ ‘testi-

niony shows that vertigo is 'ikely to have occurred regard-

less of the oscillations. “Furthermo.e, petitioners failed’

completely to produce a competent expert. to establish that

thé oscillations would produce vertigo, and failed to pro-

duce any evidence whatsoever to show that the oscilletions

were more likely to produce vertigo than oscillations which

oceur in other airplanes. The only expert produced by peti-

tioners testified about motions in a barany chair and was .

a of Argument 15

wnatile to state whether or not those motions applied to an

airplane. W hen requested specifically.on cross-examination

- to.assume conceded facts about the oscillation character-

£ istics of the Bonanza, he in effect testified that the oscilla-

- tions w ould not produce vertigo.

= As to the claim of light stick forces, there is not a single

| shred of testimony anywhere in the record to convict these

| stick forces as a contributing factor to-the accident. The

only evidence in the record shows heavier stick forces than

were required by all available criteria.

As to the rapid accelerations in-a nose down position,

this- characteristic is common to all clean airplanes of high

performance, like the one here involved. The ability of

# this plane to accelerate rapidly in a nose down position was

' known to its pilot. ‘Documents admittedly sent by Beech

to Prashker and ‘admittedly read and discussed by Prashker.

contained warnings, specifically directed to this fe: ituré of

the airplane Pragpker’s 6wn biother testified that Prash-

ker was aware of “3

)

The evidential rulings as to prior accidents and statis-

ties were eorreet.’ The evidence w hich was refused would

not have enabaéd_ petitioners to make out a case.

fa) Evidence of prior accidents could not have affect ae

‘he rulings on. contributory negligence. Nor would such

evidence have added anything to pétitioners’ case on “the

question of negligent design. Petitioners’ aerodynamicist ~

was unable to deduce from these accident reports anything

‘more than ‘‘a set of cireumstances that could get a pilot —

into very: serious trouble.’

The prior accidents invariably involved pilots unquali-

fied to fly in instrument conditions, of qualified pilots who

_ flew into conditions of turbulence unlike those of the pregent

case, which are dangerous for any pitot in any plane.. Ii:

view of the impossibility in the present state of the art of

designing an airplane w hich will. take an unqualified pilot

a . sf Me _ > . 7 ’

16°. Summary*o/ Argument

% ee $

through inatrdment -conditjons .in salety, tBevev idetice of

the prior accidents could not serve as:notice or evidence of

'a dangerous condition beyond, that. inherent in the design.

limitations of the airplane and “ which Prashker was duly

warned. Nags ie hs . bee

Bers nn oe .

(b) Similarly evidence of the statisties could not have

affected the rulings on contributory negligence nor added

-anything to petitioners’ case on the question of negligent

. design. After all, the statisties are. merely a _— of

; the accident reports.

« The comparisons: with other aircraft have no factual

heal ies,

First, the comparison ineludés airplanes (such as. the

\. Piper Cub) which were not ‘designed for and do not fly

_ cross-country and.are not of clean’ design. These airplanes

- would rarely, if eter, be in a position’ where’ they might get

involved i in wonthed conditions, and on the rare instances.

that this might happen their ‘‘dirty’’ design would tend to

prevent excessive dive speeds. In point of fact, statistically.

reap compares favorably-with several other models

f Hean design.

~. Seconil,’ pétitionets are “{umpiny. the original aie 35

Bonanza and all subsequent models of the Bonanza to-

gether. Both lower equrts found that the changes between

the original 35 model ‘and the model involved i in the present —

action werll so great as to justify a finding that they were

different airplanes. ‘These changes included a considerable. ,

_inerease’in the s usieth of the wings, so great, in fact, that

it ‘a to a chang§"in'the CAA category for which the plane

was certificated which permitted the later models to do°

some type of - acrobatics not permitted to the original

model 35.

There are other reasons for’ excluding the statistics.

First, the evidence shows at leGat three ¢ategories of vari-

ables to be involved in these accidents including the pilot, -

‘the airplane and the flying conditions. Since these variables

are not controllable it'is impossible to draw any. conglusions

a @ oD

as to any one. And second, the statistien are ‘eiihiiaacaiites

| Summaty of Argument ©. 17

becaysé’ of a statute which prohibits the use of CAA acei- -

dent, reports as evidence in any suit or action for damages |

growing out of any matter mentioned in the reports. These

accident_reports are the basis of the statistics Since it. is

élaimedtht these accilleyts prove-and are notice of: defec-

He this sotion ak

tive d ows out of ‘ ‘matters’ mentioned in

~~ the reports th€imselves. The underlying data being in-

admissible, the statisti¢s themselves, cannot be admitted...

ce , ae : G

EM Coe

“"

The decisions below ‘aite gonfined to the facts of the

; Broeent ease, do not adversely affect the rights: of other

i s and arg not based, implicitly or otherwise, on the

findings’ of an Administrative Agency. Those . decisions

were based entirely on the conclusive showing of Prashker’s

contributory negligence and the insufficiency of the eyidence °

of negligence. The lower éourts held that fair-minded

jurors could, not differ on their appraisal of the ev idence

” presented.

Réspofdents did sili that the CAA and CAB find-

ings showild be conclusive, or at the very least presumptive,

on the question of respondents’ negligence, However, the -

lower courts did not reach or pass upon that ,question.

' There is, therefore, no. basis for‘petitioners’ assertion that

. the lower courts used. rulings on evidence as a subterfuge

to give effect to the CAA and CAB findings.’ “ ee auld

V. b | :

Petitioners- have built up this recond“in the ‘hope that.

With massive data they will be able somehow to deter a-

court ffom taking: the:case from the jury, and Wl be. able

to get the sympathy of a jury by overwhel g it, with

. horror storie: “prior accidents. -Even in the Petitibir-for

z Certiorari Plaintiffs | are nttred tied to impress the court |

presented by it.

Re Summary of Argument

with atcounts of accidents which form no part of the record,

and have no relationship whatever to the present vase?

' The lower courts, after careful examination of the ree-

ord, have properly found that there was insufficient evidence

to justify tasing further time of court and jury. In so

doing, ‘they hive clearly applied thé correet legal. tests,

This court should pot spend its valuabi, time reviewing this

record in detail or in considering the narrow question’

4. For example, petitioners refer ‘to accidents which have vc-

curred since the date of the crash. In this connection, we might refer

to. SA-328, Givil Aeronautics Board Aircraft Accident Report, fil

No. 2-004, adopted June 26, 1958 and’ released July 2, 1958. The

Board decision concludes :

“The Board determines that this accident was caused by the

pilot’ 5 attempt to fly in weather conditions beyond his level of

ability.”

oe as

7 Argument ° . 19

E. ARGUMENT.

I. THE UNANIMOUS DECISION OF THE TWO LOWER

COURTS ON THE INSUFFICIENCY as THE EVI.

DENCE SHOULD NOT BE REVIE —? THIS

- COURT.

The District, Court held that ‘‘The minds of men pon

not differ upon’ the question’ that the‘actions of Prashker

_direetly contributed in some degree to the -accident’’®

(297a). In so ruling, the court expressly reeognized that,

‘*When the question of,contributory negligerice arises from

4 state of facts from-which reasonable persons might draw

different conclusions either as to the facts or the conclu-

sions or inferences: ‘drawn from such facts, the question of

contributory negligence’ is for the jury to determine”’

(296a). Quite clearly the court felt that fair- minded jurors |

could not honestly .differ upon the question of whether

Prashker’s negligence contributed in some degree to the ©

‘accident. It would ° verbeen futile, and contrary to ac-

cepted judicial principfes, to proceed further with the trial

when plaintiffs’ own evidence had so plainly established

that they were not entitled to recover.

The test applied by the District Court ‘is “eminently

- correct whether (in a case such as this where jurisdiction

is based solely upon diversity of citizenship} the question

of the sufficiency of the evidence for the jury is to be gow-

.erned by: Federal law, see Rye v. Blue Ridae Cooperative,

346 U.S. 525, 78.S. Ct, 893, 2 L. Ed. (2d) 953 (1958) reh.

*’ den. 357 U.S. 933, 78 S. Ct. 1366, 2 L. Ed. (2d) 1375 €1958),

hy the local law of the forum, e.g., Palmer v.-Hoffman,

as U. S, 109, 63'S. Ct. 477, 87 L. Ed. 645 (1943) reh. den.

S18 U.S. 199, 63 S. Ct. 757, 87 L. Ed. 1163 (1943) ; Cities

5. It was conceded that Pennsylvania law is applicable to ve

defense of contributory negligence, and that under Pennsylvanié law

there,can be no recovery if Prashker’s negligence contributed in any

degree to the production of the injury complained of.

* 20 : | Argument

Serv ete v. ip eee 308 U. S. 208, 60:S. Ct. 201 84 L. Ed.

196° (1939). “The applicable law in all of the jurisdictions. «

involved is in aecord with the ruling of the District Court.

Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 510, 77

S. Ct. 443, 450-451, 1 L. Ed. (2d) 493 (1957); Kent -v.

Parker, 8 Terry 151, 89 A. (2d) 133 (Del. 1952); Maher v,

loss, 9 Terry 45, 98 A. (2d) 499 (Del. 1953) ; Attonelts rv

~ Tumolo, 390 Pa. 68, 132 A. (2d) 285 (1957).

The Court of Appeals took the same view as the Dis.

- «ttiet Court, agreeing that the evidence would not support

an inference which is vital to petitioners’ contentions on

the issue of contribntory negligence (Pet. 7a). The Court,

however, feeling that its position’on the availability of

such inference ‘‘may be arguable”’ and also because the case:

had been ‘‘so thoroughly and well ,.. ~ented?? preferred ‘‘to

rely also on.an alternative ground for decision’’ that the

evidence did not show any negligence on the part of Re-

spondent Beech (Pet. 7a, emphasis supplied). .

a The entire issue here rests upon the peguliar facts in-

‘volved in this case, largely undisputed, and the inferences

properly to be drawn from these facts. The District Court °

following three weeks of the presentation of petitioners’ |

ease felt that on the question of contributory negligence

the minds of men could not differ upon these facts and

-upon the conclasions and inferences to be dawn from them.

On review of the record, three judges of the Third Circuit

Court of Appeals unanimously agreed. .

This Court is thus being called upon to review the

unanimous findings of two lower courts on the sufficiency

of the evidence in a voluminous and highly technical and

highly. specialized record. This Court is not now-being

”

called upon to review the judgment of an Appellate Court .

which has reversed and set aside a lower court jury verdict

. and judgment thereon as in the cases relied on by Peti-

tioners: Union Trust Company, v.. Eastern Airlines, 350

U.S. 907, 76 S. Ct. 192, 100 L. Ed. 796 (1955) (Pet. p. 24):

Gibson v, Phillips Petroleum Company,-352 U.S. 874, 77

S. Ct. 16, 1 L.Ed (2a) 77 (1956) (Pet. p. i, Anderson;

Adm’x v. Atlantic Coastliné Railway Co., 350 U. 8. 807, 76 -

S.Ct: 60, 100 L. Ed. 725 (1955) ; Swafford v. Atlantic ‘Coast-~

“ie R. R. Co., 350 U. S807, 76 S. Ct. 60, 100 L:- Fd. 725

(1955) (Pet. p. 24); Lavender v. Kurn, 327 U. 8S. 649, 66.-

S. Ct. 740, 90 L.. Ed. 916 (1946) (Pet. pp. 18, 22) and

Tennant v. Peoria &'P. U. Ry. Co., 321- U. S. 29, 64S. Ct.

409, 88 I: Ed. 520 (1944) (Pet. p. 24), Nor is it called upon

_ to-repudiate a rigid judge-made standard of negligence |

York, 215 U.S. 752, 62 S. Ct. 854, 86,L. Bd. 1166 (1942)

either under Federal statute as in Jacob fi City. of New.

_ (Pet. p. 18) or under the pre Erte. R. Co. v. Tompkins

fqjeral common law of negligence as in Pokora v. Wabash -

Railway Ce., 292 U. S. 98, 54 S. Ct. 580, 78°L.: Ed. 1149

(1934). (Pet. p. 24).

It is, therefore, appropriate to eels the two-court rule

in this casé. Where two lower courts have agreed that

the evidence of negligence | or contributory negligence, and ©

the inferences which may * properly be drawn therefrom,

do not warrant submitting such issues to the jury, this

Court will accept those findings in the ahsence of plain

error.’ Boehmer v. Pa. R. R. Co., 252 U. S. 496, 40 Sv Ct.

409, 64°L. Ed. 680 (1920) ; Gillis v. N. Y.,N. H. d H.R. R.

-. Co., 249 U.S. 515, 39 §. Ct. 355, 63 Li. Ed. 738 (1919) ; Erie’

~ Railroad Company v. Welsh, 242 U.S. 303, rm Seb 116,

61. Ed. 319 (1916); Baugham ve NL Y., Phila. & Norfolk

R. R., 241 U.S, 237,36 S. Ct. 592, 60 L. Kid. 977 1916).

There is a strong publie policy argument in support of

the right of a court to direct a verdict for a defendant. when,

the plaintiff has failed to make a prima facie case. The.

time of the court, the time of the jurors, thaf of other liti-

gants and-the interests of justice all require that a ‘jury

should not be obliged to sit through many more weeks: of

trial when a plaintiff has already demonstrated his inability

to establish his case, and a court should rot pe ‘rmit a jury

to speculate in’a case where the plaintiff has made out such

a poor showing that, as a matter of law, it may be said that

; ; a |

- ; | Argument . | a 21..."

Ze.

OR.

Ay &ex

22. | - Argument

he is not entitled to recover. Under these circumstances

there certainly cannot be any violation of. the Seventh .

Amendment to the United Stateg.Constitution. |

The lower courts manifestly recognized and applied

the proper test in determining. whether there was sufficient

evidence for the jury. The a application by the lower courts

of this test to the facts of this case wes not plainly erro-

neous. In fact, the-result reached by the lower courts was |

absolutely inevitable, and the only possible reasonable re

sult under the evidgnce presented, as w e shall now show,

II. THE DIRECTION OF A VERDICT IN THIS CASE

: WAS CLEARLY CORRECT.

A. As to Contributory Negligence (Pet. pp. 15-18)

It is agreed by all parties that Prashker flew his plate

into instrument weather in which he was unqualified to fly,

lost control of the airplane, and as a result imposed heavy

; loads upon the wings and tail in exeess of the limitations

for which the plane was designed, and thus ripped off a

wing dad part of the tail in flight. Petitioners, realizing

the strong evidence of contributory negligence inherent ite

the entire situation, devoted a good part of their case to

an attempt to excuse Prashker's conduct. Their argume/t

postulates hypothetical facts which fi no ‘support in the

record or in any inferences thut can fairly be drawn there-

from. .

Prashker'’s conduct can be measured only in terms of

warnings -he had received, the Civil Air Reeulatitns, and

a knowledge of flying which is completely outside the range

of experience of the average juror. The case deals with

matters entirely foreign to the average juror’s experience,

‘such as aviation vertigo, meteorological data as seen in the

air and interpreted by weather reports, blind flying, ete

Unlike a ship, train or automobile case, the. juror’s common

sense Ww ill not enable him to draw inferences agd conclusions

. e 4

‘@

Argument ’ 23 |

without considerable help from a pilot or someone of equiv-

alent qualifications who hye testify as to conditions in the

air, Cf. Woschenko’v. C. Schmidt & Sons, 2 N. J. 269, 66

A. (2d) 159 (Sup. Ct. a

~The only pilot called by the Petitioners was William i.

‘Blakemore, a. TWA pilot who was also employed as a sales-

man by respondent Atlantic Aviation C orporation (38a-

39a). In addition to some questions regarding Blakemore’s —

slight connection with the sale of the plane here involy ed

to Prashker (39a-40a), Petitioners’ counsel qualified Blake-

more as an expert pilot (39a) and questioned him on

‘weather conditions between -the two airports involved, in

iattempt to establish a basis for justifying Prashker’s

flight under the conditions shown by the evidence (40a-43a). Mok,

Blakemore’s expert pilot testimony is uncontradicted and

provides, in addition to the Civil Air Regulations and Re-

spondent Beech’s warnings, the only criteria by which ta

measure Prashker's conduct.

The evidence, consideredin the light of Blakemore’s

testimony and the C ivi. Air Regulations, establishes con-

clusively Prashker’s negligence in taking off on the fatal

flight, in attempting to fly over the City of Pittsburgh, in

not turning back in time, in attempting to ‘Am up into

the overcast, and in failing to lower aps and landing gear

after entering the overcast. ’

_ Prashker was negligent in taking ‘of in the face of

weather conditions which he either had not checked, or had

ignowd. He knew he was not qualified to fly in instrument

weather, and had been warned: of the dangers (pp. 9-10

supra). Yet the weather report showed an estimated ceiling

of 1800 feet, horizontal visibility of 4 miles (304a), haze,

light rain, ‘and a temperature close to the dew point (PX

26,304a). The latter factor gave every reason to anticipate

the formation of fog and changing weather conditions

(122¢).. Nevertheless Prashker filed a visual flight rules

plan giving an indicated altitude i.e., altitude above sea

_ level) of 3,000 feet, to which he intp-nded to fly (75a) which

24 - - + Argument

translates to 1,750 feet above the airport (which was 51,250

feet above sea level). The flight plan’ therefore contem

plated flying only 20 feet below the reported ceiling, a clear

violation of 14 (. F. R. § 60.30 which requires a non-

instrument pilot to stay 500° feet vertic ally and_ 2,000 feet

. horizontally away from an overcast (47a-49a). See Allen,

13 CAB Rey 375. .

. Althougi: the CAA minimums were slightly exceeded

Blakemore’s testimony established that there are times

when it is unsafe fer a non-instrument pilot to take off even.

_ though the minimum requirements of ceiling and visibility

are met (45a). Prashker was clearly negligent either in

failing to check the weather or ‘in taking off in the face of

the information furnished. Hall v. Ose#-102 Cal. App. (2)

_ 849,-228-P- (2d) 293, 3 Avi. 17,493 (App. D. C..1951).

; Prashier was further negligent in attempting to fly

over the City of Pittsburgh, 'a city over which in 1953 (the

"time of the erash) there was considerable smoke and h: LZ

(43a). Certainly Prashker, who had _ gone to college. there -

(21a), who ‘claimed Pittsburgin as bis residence (11b) and

who had previously piloted: his own planes in or out of

Pittsburgh several times (113b) was aware of the smoke

and haze in the. Pittsburgh | area (49a). If. not, he was

“specially warned at the outset of this very flight by the

Tower: “** * * T advised him to use caution passing through

the Greater Pittsburgh area as thev have considerable ‘in-

strument traffie’’ (PX 26; 310a, 306a). Blakemore testified

that in any event a prudent pilot in making up his fiig¢ht

‘plan would hawe-considered the probability of smoke and

smog over the city (45a).

Prashker was supremely negligent in allowing himself

to become involved ® instrument weather and in trying t»

climb up into the overcast, instead of keeping under‘it and

returhing to the/ airport, or otherwise avoiding it. The In-

cidzent Report shows that when Prashker established radio

contact with his own airport he was ‘already i in the G—D—

_ Stuff 8 and ‘‘was eed to get on ~. (2J0a). This was

Ps,

- Argument |

7 . . i. - bd . . : : . r a

clearly a violation of several Civil Air Regulations: 14

C.F. R. § 43.65 (which prohibits instrument flight by a

pilot who does not have an instrunient rating, see Carver,

13 CAB Rep. 277 and Konantz, 13. CAB Rep. 401); 14

(.-F. R. § 48.68 (which requires instrument training within °

the ‘previous six months) ; and ‘§ 60.30 (requiriifg a non-

instrument pilot to: stay 500 feet vertically and 2,000 feet.

horizontally away from an overcast). Blakemore testified

- that it would be not only a violation of the regulations ®

but that it would be imprudent for a: pilot to ‘attempt to

-_¢limb into an overcast where he ‘does not have an instrument

rating (47a-49a)." a .

Finally, Prashker neglected to lower landing gear and

‘flaps (21c, 22c), as he had been advised by respondent Beech

to do if he found himself iri weather conditions with which

he could not cope (25b-27b). He further heightened the

danger by, having his plane trimmed for a slightly nose down

attitude (76b-77b). os ,8 |

It cannot be disputed that the violation of a specific

regulation or statute controlling aviation constitutes negli-

6. Cf. 14 C. F. R. § 60.12 which prohibits a careless or reckless

operation of an aircraft and sets forth as an example of a violation “an

operation conducted above a cloud layer ‘in accordance with VFR

minimums which results in a pilot becoming involved in instrument

flight, unless the pilot possesses a valid instrument rating. the air-

craft is equipped properly for instrument flight and all IFR require-

ments are observed”. Prashker was attempting to conduct such an

operation by climbing up through the cloud: layer. See also Hart-

shor, 13 CAB Rep. 410. '

\ 7. The absurd proposition which was advanced by petitioners fqr

the first time before the Court of Appeals to the effect that the reason

Prashker climbed up into the overcast was to get as much space as

_ possible between himself and the ground (Pet. p. 17) is totally un-

supported by a shred of evidence anywhere in the record. Petitioners

would ‘not have darcd to Hiave any witness testify to this ridiculous

suggestion in the court below where it could have been ‘exposed on

cross-examination. It is hopelessly inconsistent with petitioners’

other contention, that Prashker was trying to return to the airport.

The only’ pilot expert called by petitioners described Prashker’s

conduct as imprudent (47a-49a). ‘

26 © _ Argument . : .

gence per se ‘and bars recovery under Pennsylvania law. .

See Yoffee v. Pennsylvania Power & Light Company, 355

Pa. 520, 123 A. (2d) 636 (Sup. Ct. 1956): T. A. 7. Flying

_ Service v. Adamson, 47 Ga. App. 108, 169 S..E. 851 (Ct. App.

1933) 32 C. J. S. Aerial Navigation, § 21." a

| Petitioners rely upon a presumption of due care. The

Pennsylvania decisions clearly hold that the presumption is

not applicable where, as here, ‘plaintiffs’ own evidence estab-

lishes decedent’s negligence. ‘ DeFonde vv Keystone Vallyy

Coal Co., 386 Pa. 433, 126 A. (2d) 439 (Sup. Ct. 1956);

Zotter v. Lehigh Valley R. R. Co.,'280 Pa. 14, 124 Atl. 2s4

(Sap. Ct. 1924); Rank'v. Metropolitan Edison Co., 370 Pa.

107, 87 A. (2d) 198 (Sup. Ct. 1952).

The suggestion of Petitioners that after take off

Prashker encountered worsening conditions, turned: back,

wad in attempting to return found himself trapped in bad

weather (Pet. pp. 16-17) is directly contrary to the evidence

and to any inferences or conclusions. which may be drawn ~

therefrom. The evidence clearly is to the effect that. the

instrument weather could have been avoided. «

Even if Prashker did turn around, it is clear that lic

imprudently allowed himself to go too far before doing so.

‘Blakemore’s testimony, uncontradicted, establishes that

Prashker would have been able to sce the instrument’ _

weather in time to take means to avoid becoming involved

in it (45a-46a, 69b-70b). ° When petitioners’ counsel at-_

tempted to discredit this testimony by suggesting to Blake-

more that he knew from his own experience that Weather

can close in on a pilot, Blakemore denied it, and undér

further questioning stated that he knew of no responsible

evidence that weather could close in on a pilot. Blake-

more’s testimony was consistently to the effect that *the

pilot can and’ must avoid the weather conditions either by

8. Cases dealing with whether the conduct of. the pilot wa.

sufficiently gross so that iis license shculd be removed or suspended

- are inapposite.

‘

Argument 27

turning around, by flying under it or by flying around it

(48a-50a, 54a-57a). pk:

Blakemore’s testimony is further supported by the

‘weather reports, which establish/that the weather at the

airport was VFR throughout the flight (304a), And Prash-

ker got into trouble over the Greater Pittsburgh area after .

he was specifically. warned, at take off, about “* * * the

Greater Pittsburgh area as they have consideralde instra-

ment traffie’{ (PX 26; 06a, 310a). He cannof complain of *.

‘a trap, or clakn emergency, since the situation, especially in

view of the warning, was of his own making.”

The District Court, was, therefore, amply justified in

- holding that, *‘It is,the undisputed evidence in-the case that

instrument ‘conditions or mstrument’ weather.do not. sud-

denly come upon’ ore ‘but that stich conditions canbe

atgided by either going, to one side of such conditions or

textimony of petitioners’ only pilot expert. Therefore, the

Court of Appeals wa’,amply justified in its holding that an

inference that bad weather may have <losed in on Prashker

even thongh he was exercising dy eare for his own safety

‘was not available.’ |

The rulings of thé courts below were eorrect. A

fortiori these rulings certainly were not such a plain error

as would justif y this Court to ignore the two-court rule to ,

grant certiorari on this narrow questign. M4 :

9. Petitioners ask; “How can the quéstion of contributory negli-

génce be arguable and still not be left for the jury?” (Pet. p. 16.) It

was the availability of the inference that weather can close in on a

pilot which the court stated “may be arguable”. - The court “inclined

to the view” ‘that the inference was not available and, therefore sus- .

“tained the ruling of the District Court. The court did not say the

question of contributory negligence was atgugble. It was not.

ir re from wheiee ‘hd came’? (297a). This was the ©

egti

ee ee]

—

me Ne eg LR ne Ne

28 Argument

B. As to Negligence.

—_——

“1, | Alleged Negligent Design (Pet: pp. 22- 24).

_ The evidence relating to plaintiffs’ contentions of negli- *

gent design must: be thoroughly distorted before the court’

could come to the conclusion that fatr-mindéd jurors might.

find that the plane was negligently designed. In fact the

Petition for Certiorari is fall of such distortions.

The Petition’ for -Certiorari alleges a combination of

three characteristics which it is claimed made the Bonanza .

_ peculiarly subject to be torn apart by an unwary pilot (pp.

.0, 22-23). These three alleged characteristics are: (1) an

oscillation. characteristic which allegedly would disonigyt a

pilot and make him physically ill (vertigo), (2) alleged

light stick forces, and (3) an alleged extremely rapid rate

‘of speed -build up in a nose down attitude. There is no

evidence whatsoever in the record which can reasonably be

said to support factors 1 and 2. As to factor 3, it so catted .

that the Bonanza is a high performance airplane of clean.

design which builds up speed rapidly in a dive. We show

infra (pp. 32-33) that Prashker was aware of this and that

Beech specifically warned him of it. There is no evidence

_ that this characteristic was extreme for an airplane of

clean design,

Petitioners failed to produce a ‘competent expert who

: could establish that the oscillations would produce vertizo,

and produeed no evidence whatsoever to show that these

particular oscidlations were more likely to. produce vertigo °

than oscillations which occur in other airplanes. ‘

The testimony of the physiologist produced. by peti-

tioners related solely to motions in a barany chair. How-

ever, it'was agreed that the airplane’s oscillations, anlike

-the barany chair “movements testified to, were not more -

than two or three degrees on either side of a node (46c-47c,

135¢-136c). This fact was not ¢ven propounded by peti-

tioners to thei expert (164¢-165c), nor did this expert feel

the aes had asked for an — relating to this type

- | | Argument 7 Be ts 29.

of oscillation (164¢). Plaintiffs’ expert candidly conceded

that he did not know any thing about airplanes or whether

or not the barany chair tests (he had only observed them

25 years before as‘a student in medieal school) fitted. the

‘motions of an airplane (155¢-165¢)."° Endeed this expert -

testified: that short back and forth oscillations such as it was

conceded existed in this airplane would tend to: negate: each |

other and eliminate any trace of vertigo (165c).

If we assume, contrary to fact, that the oscillations of

the tail of this plane have vertigo- -inducing characteristics _

‘in instrument conditions, petitioners have nevertheless

failed to adduce'any evidence that these character ties were

peculiar to the Bonanza. All airplanes have the. » osciila-

tions to some degree. (132c). The fact that the evidence

shows that all aircraft do not have precisely the same

oscillation characteristics, or pitch to precisely the same

degree, provides no basis for drawing adverse inferences

as to the Bonanza; ar for assuming that vertigo is more

likely to occur in the Bonanza than in any other plane.

_ The undisputed evidence: shows that Prashker was

aware of the oscillations even before he bought.the airplane

(47b-48b), that he discussed them with his brother after the

' purchase (51b); that these oscillations oceur only in certain

types of rough air (46c, see 50b) and do not affeet the

stability of the airplane (47c). The National Advisory

Committee for Acronautics which made extensive tests -of

the Bonanza model and “ybser ved the oscillations. neverthe-

less found the plane to tv satisfactory and not unsafe (52c).

The CAA, after examining. the longitudinal, directional and.

lateral stability of the Bonanzas, found no unsafe feature

‘ sinee it concluded that there wag no need to revoke the type

certificate (32¢-33¢). , ‘

10. Assuredly plaintiffs were not prevented from engaging

somebody especially competent in the field of aviation medicine.

There are such experts (159¢). Obviously the expert picked by

plaintiffs was not competent in this field, and did not pretend to be

able to give an opinion as to the effect of airplane oscillations on

vertigo (155¢- _ 163c).

30 ; Argument ‘“

Petitioners’ only expert’ dn the subject of-vertigo was

unable to state that the oscillation characteristics of the

‘Bonanza would produce vertigo (163c) and was clearly in no

‘ position to compare them with other airplanes. He ‘agreed

that vertigo is likely to ensue in arry.event where a person

unfitted for itistrument flying is placed in a situation where

he must use an instrument t&fly (163c). The absence of

_ satisfactory expert testimony leaves the jury with no basis

"a special, tendency to’ induce vertigo, ef. Woschenko v.

C? Schmidt €Sons, 2 N. J. 269, 66 A. (2af 159 (Sup. Ct.

- 1949): Se et ge a As a

As to the stick forces, thgre is no testimony whatsoever

that they were in any way a contributing factor in this

accident. - The Petition for Certiorari- doe not even cite a

record reference. Even Mr. Dommasch, one of plaintiff’s

experts, did not attempt to link the stick forees to this

“accident. *- ~ 7 me a

The only evidence in the record shows that the Bonanza

had stick forees higher than any.existing specifications.

‘The stick: forces per G are above those required ‘by the

National Advisory Committee for Aeronautics, a permanent

governmental research organization (55e-d6¢, 59¢-60e) and:

exceed both the maximum and the minimum required by the

military (59¢)."' Actually the plane in the present case was

' *oloaded in a waythat would have made the stick’ forces even

heavier (57e)."* “The CAA after investigating the stick

forces per G, made no decision to revoke the type certificate .

. (31e). semeey ot v

As to nose down acceleration, there is no evidence that

once the plane was in a nose down attitude its acceleration

ees The suggestion in the Petition for Certiorari (p. 22) that

the Bonanza would pick up speed more rapidly than a military fighting

plane is astonishing. It is certainly not supported by the record. |

12. Petitioners’ reference to the disastrous ‘effects ‘of “a light

touch on the stick” (p. 5) ‘4s wholly unsupported by ‘record references,

_and contrary to the testimony as references above made show.

Argument A, ee

-was greater than could have been expected of any high per-

formance airplane of clean design’ The CAA found no

dangerous nose down tendencies in this airplane (28¢-29¢e),

and it is undisputed that the airplane does not get into a

nose down attitude unless it is pushed there (51e). It is

~ also undisputed that no plane vould be certificated by the _.

CAA if it had dangerous tendencies to get into a nose down

position (40c). ; ,

~The documents alluded to by petitioners (Pet. pp. |

- and 21) do not establish or.tend to estaldish anything to the

‘contrary. The excerpt (Pet. p. 23) from the NACA report »

(PX 22) is a sthtement that might well be made about any

airplane with a cléan design. In fact, that report concluded —

that the airplane was a satisfactory airplane (see 52c). PX ,

42 is one of many such reports prepared by Beech (221a)"

and attempts to give actual figures-of the nose down accel-

eration of the Bonanza. These figures were later disproved

(218a), and petitioners’ counsel demonstrated through his

examination of one of Beech’S engineers that the figures

inéluded in that Teport were impossible in that they .ran

eounter to physical laws and were an error which Beech: had

- overlooked (219a-221a). It is difficult to see how. these ad-

_ mittedly erroneous and impossible figures can possibly be

‘used as the basis for a finding of fact. PX 72 is ageport

submitted iployees of respondent Beech dealing with

the feasihitit dive, brakes." Again there is ‘nothing in

this report which would indicate that the acecleragion in a

13. A contention that the plane should have had dive-brakes was

alluded to at the trial and was mentioned in the opinion of the Court

of Appeals (Pet; 8a). The only evidence or this point was to the _

effect that the CAB never required dive, brakes (29c), that the landing

gear itself could be used as a dive brake (130c), that dive brakes

were plored by Beech’s personnel who concluded that they would

be undesirable: from a safety standpoint (223a, 225a-226a ; PX 22)

and that they’ have never been used in airplanes like the Bonanzas, °

* but only on military planes (129c-130c). -Of course, the mere in-

vestigation of a possible safety feature doesnot demonstrate or provide

evidence of its desirability. pee : a Y

/ ead

‘ ————— ihe , | ~

OR AT Ste re RE nee ae

—

SS ee

Php,

32 |. Argument

nose down position arises from any’ fact other than the

plane is a high performance airplane of clean design.

’ The reference to a rapid nose down piteh and build up

of speed associated with it (Pet. p. 23) is just. another, ex-

-ample of grasping for straws. There was no testimony that

this alleged. characteristic was a factor in the accident. It _

was mentioned in an oblique way only on cross-examination, °

and petitioners did not even consider it of sufficient im-

portance to include it in their printed appendices for the.

- Court of Appeals. 2 4

-This aecident occurred because an unqualified pilot at- °

tempted to .fly in instrument weather... Admittedly his

danger was increased by the fact that the airplane was cleafi

and could pick up speed rapidly. However (as the Court .

of “Appeals pointed out) in view of the warnings- given

Prashker (supra pp. 9-10; infra pp. 32- 33) he assumed

the risk of this: ots

the possibility that\he might encounter turbulent instru-

ment conditions.

2. Alleged Failure to Warn (Pet. pp. 19- 22).

Sa The evidence establishes conclusively that Beeeh

“warned Prashker’ of the dangers of flight (of which every

pilot is aware anyway) and that Beech spea@fically and

. repeatedly warned him of the very danger which led to this

tragic accident, namely the danger of flight under instru-

ments. Decedent was specifically warned that cleanness of

‘design permits rapid acceleration.

PX 6, entitled ‘‘Facts Every Aircraft Senin Should

and read by Prashker “(15b). That booMet specifically

warned ‘of the difficulty of mer se the extent of tur-

bulence in-an area ot obscure visibilyty. The booklet. stated

that the nypst cOmr n difficulty penny? wis for the

airplane to get into'a dive afd thatgthe rapidity with which

f%%”

acteristic every time he flew subject to -

‘ment conditions by a pilot. not qualified to fly on instru. -

-Know”’ (13b), was admittedly sent to. ima by Bee eh.

+ Argument 33

of the air e inereases (17b). Prashker was aware that

the Bonanza was a clean airplane (17b).

. PX 13, a booklet entitled ‘* Air Facts’? (14b) and, fur-

nished.to Prashker by Beech (33b), in discussing the dan- ‘

gers of an unqualified pilot getting into instrument condi-

tions, points out: ‘Since a modern, clean airplane will pick

up speed very quickly without the nose being pushed down

very far, the situation rapidly gets out of hand’? (PX 13

' p, 6, found-at 168¢; 36b). e °

_ PX 17, the Beechcraft Bonanza 1953 handbook (15b),

- admittedly furnished to Prashker by Beech and read by hitn

(41b) states, ‘‘The loads which rough air or t rbulence can

- put on a wing at higher speeds is something that must be

‘borne in mind at all times. These problems apply to all

aerodynamically-clean airplanes of which the Bonanza is

one’? (41b-42b). The exhibit further states, ‘* Aerodynam-

_jeally-clean ‘airplanes will pick up speed rapidly when the

_ Prasliker’s own brother testified that Prashkefwas

‘ aware that the Bonanza was a clean airplane which would

ateclerate rapidly in a nose down position, and thafWrash-

ker had read.and absorbed the warnings of Beech on this

*; point (17b, 34b-35b7 36b-39b). These warnings were a part

of the over-all warnings by Beech that pilots unqualified to

fly instruments must ‘avoid. instrument weather (13b-25b,

29b-38b; see PX 6, 7, 8, 13, 17 and 18).

The warning was specific and unglisputed. ‘There is no

“ . evidence op which to submit the issue of failure to warn

to the jury. *. '

F “4 es

the tile tnare is more pronounced as the cleanness

34 eC Argument

IT. EVIDENCE OF PRIOR ACCIDENTS AND STATIS.

TICS WAS PROPERLY EXCLU D AS IRRELE.

_VANT, AS WELL. AS.ON OTHE: GROUNDS, AND

a WOULD HAVE ADDED NOTHING TO PETI.

are -TIONERS’ CASE. | :

———

A. As to Prior Accidents.

The evidence of the prior accidents could not in ant

way have changed the ruling as to Prashker’s contributory

negligence, which the lowerCourts found dispositive of the

case. Nor could it have added anything to the Jaigpuions rs’

attempted proof of negligent design. .

. Although petitioners’ aerodynamicist ' testified that

_ he needed the reports to enable him to form an opinion, it is -

quite apparent from his testimony that all he was able to

wring out of These reports was an alleged pattern of a dis-

oriented pilot who, as a result of his disorientation, allowed

the nose drop and the plane to pick up excessive speed,

pulling the |wings off when he tried to pull out of the dive

(248a-25la). As we have already shown in our Statement

» of Facts, this is. undoubtedly a situation of common oceunr-

“rence in any airplane where a pilot who is not qualified to -

. fly on instruments negligently gets into instrument con-

ditions (pp. 7-8, supra). Loss of control naturally may

ty ensue more rapidly in.a“‘clean’’ airplane. (pp. 8:9, supra).

In fact, this i is specifically pointed out in the article ‘*G’s"’

' in‘*Air Faets’’ for Deeember 1, 1948 (PX 13, p. 6 at

168¢), a copy of which was furnished by Beech to evefy.

Bonanza purchaser, including Prashker. The evidence of

these accidents would therefore add nothing to petitioners’

proof. Nevertheless, the lower Court did permit petitioners

| vi G

14. Petitioners’ glowing references to their expert; Dommiasch

_ Should be read in the light of what the record actually shows: Dow

| masch was not a pijot (60c); he ordered no flight tests of a:

Bonanza (74c) ; he had never flown in any model Bonanza (60c ) ; he

- had never done any accident investigation, except for one helicopter

accident _(O4c-65c). _

Argument 35

a 0

to introduce ‘wuts wach reports for the. purpose of at-

tempting to establish notice. ..

In point of fact, the Court properly excluded the bal-

ance of the reports of prior accidents on the ground of |

irrelevancy. The Court of Appeals’ succinetly and ably set

forth the proper basis for this ruling when it said (Pet. 1a-

12a; 258 F. 2d 602 at 608-609) : :

ying that the. planes came apart is not enough

ause of the *ompromise ‘required with structural

rength in designing an aircraft which will get off the

ground. To be relevant on the issue of causation at-

tributable to a design defect the accident reports. would

have had to show at least that the planes involved had

“not gone out of control prior to their coming apart, or

if they had gone out of control}fhat it had been without

the fault of the pilot. The seven reports in evidence—

and they may be assumed best’ to present the plaintiffs’

case—inv ariably involve-pilots unqualified to fly under

instrument .conditions who nonetheless were in such

conditions or, in a few instanees involving the un-

admitted reports, pilots qualified fur instrument flight

who were in turbulent weather when the accidents oc-

curred. To hold the aircraft responsible on such evi-

dence would be utterly to disregard the factor of human

fallibility known inevitably to occur in such circum-

stances and would be patently. unjustified.”’

Petitioners compaain of failure to follow local law. The

‘only local law applicable is that of Delaware, since Rule 43,

F. R. C. P. pravides that either Federal Law, or the law of

the forum applies, whichever one favors reception of the

evidence. Delay are law is presumably the same as Federal

_ Law, whie +h requires that the ev idence of the prior accidents

: have some probative merit. . The opinion ef the Court ot

Appeals persuasively exposes the lack of such probative

merit in this case. & | irk

‘ v= e oo

nee ae a ae Et A CI

36. Argument

The words ** prior accidents’’, ‘existence of a danger

ous condition’’ and ‘‘causation’’ do not in themselves have -

a talismanic effect to opersthe door to the admission ot

prior accidents.” The occurrence of the prior accidents.

must be shown to have a tendency to prove notice er th

existence of a dangerous condition. “The, cases —eited-ny-

petitioners, metading the Pennsylvania cases, involve an

object which is surrounded by a few clearly invariable or

similar cireumstances, .and involvé acCidents which or:

dinariJy.would not be expected to happen in their setting,

Unlike the present case, they do not involve the maneuver:

ing of a delicate mechanism, which requires a high degree,

-of-skithand-care, Here the tnqualified pilot, regardless of |

the airplane's design or type, can be expected to tear the

‘plate apart if he gets into instrument conditions.

No impartial person could read the prior accident re-

ports and feel that.they gave notice of any .design defect

in the plane. Thus PX 51 relates to a pilot with no instru-

ment rating. PX 52 relates to a pilot who notwithstanding °

an instrument rating had been adjudged so poor a flyer on

instruments that his superior had forbidden him to fly in

instrument weather (107e-108e). PX-49 suggests that the

pilot was reckless (106c):. PX 46 (95e-97¢) indicates a vio-

lent storm and PX 47 a dangerous thunderhead. (100e-101¢),

dangerous even to a qualified and experienced pilot. PX 4s

indicates turbulence and thunderstorm (102¢c) and PX. 52

indicates heavy rain and lightning. PX 47 suggests that

the plane may have been impropetly maintained and previ-

ously damaged (100¢), and that the plane was doing **har-

rel rolls’? (99¢). The plane in PX 49 did not have adequate

instruments for instrument filving (104e- 105e).

Virtually every accident plaintiffs offered to proven,

(260a) occurred under’ adverse weather conditions where

‘15. Petitioners’ statements, p. 26, complacently arrogating t

themselves thé triumph of being the first to “pin-point the design of thy

airplane” as the cause of these accidents should be read in, the light

of the fact that they have not done so. The testimony showed. that

phe: decedent himself was responsible for this accident.

‘pilot in any of these reports (P.

Argument 37

the plane was flown into instrument conditions. Yet of the

Béecheraft Bonanza accidents preceding the one in suit

(not one of which involved a Model D), in only two in-

stances was the plane known to be piloted by a pilot with

an instrument rating and € equipped with the proper instru-

ments for flying in instrument weather. Both involved

flight into a thunderstorm with moderate to heavy turbu-

lence reported, a danger for any pilot (101ec). These reports

are no more evidence of notice to the manufacturer of neg-. .

ligence in design or construction than a crash of an auto-

mobile is notice to'the manufacturer of that vehicle that he

has fatten -down in some respect.

Dommaseh’s testimony that the reports were necessary

to his analysis carries no weight, for all he could get out

of them was some vague kind of notice of ‘‘a set of cireum-

stances that could get a pilot into very serious trouble’’

(251a). Mr. Dommasch also testified that one of the reports

(PX 46) which consisted wholly of forejgn newspaper clip-

~ pings was so unréliable that he put ‘‘ne-particular stock

t th only instrument .

52) had been grounded .

for incompetence (149¢-150c), Ahat he did not recall the

testimony indieating that the plane in PX 52 may have been -

flown into instrument conditions by a student pilot (150¢e)

and that in the remaining five reports in every instance a

non-instrument pilot was involved in instrument conditions

(155e). .The lengths’ to which Dommasch would go to tor-

ture some kind of ‘‘notice’’ out of these reports is drama-

in it’’ (148¢), that he did not know

. tized at. 265a where. notwithstanding the grossest evidence |

of a pilot’s negligence the witness still endeavors to locate

other reasons for the erash.’

The .Court of Appeals also upheld the rulitigs as to

prior accidents as those rulings related to the original

model 35 airplane, The Court: of Appeals upheld the

Court's finding that the changes made between the original

model 35 and the D model involved in the present case were

° . . . , ’ ‘\

» 38 : ah segment

sufficiently great to justify regarding the two models as

dissimilar aireraft. This ruling was clearly supported by

the record.'* We do not labor the point as petitioners have |

not mentioned it in their Petition for Certiorari.

The District Court was also clearly justified in exer.

cising its discretion to limit the number of prior accidents

that could be introduced. The exervise of discretion was °

based upon a consideration of the extent that collateral

issues may be introduced, the degree of prejudice that

_ might result and the amount of time to be expended. See

Dimenco v. Pa. R. R. Co., 19 F. R. D. 499 (D. C. Del. 1956).

No abuse.of that discretion i8 shown in this case.

B. As.to Statistics.

Like the evidence of the prior accidents, evidence of:

the statistics céuld not in any way change the ruling as to

> Prashker’s contributory negligence, which the lower’ Courts

found dispositive of the case.

Similarly, evidence of the statistics could not have

added anything to change the result of petitioners’ at

tempted proof of negligent design. The statistics them-

selves do not. prove bac design any more than a racing car

could be shown to be badly designed merely by. comparitiz

its accident rate with that of all other cars. We have al-

ready shown ‘(supra PP. 30-32) that the-elean design which

admittedly increases in some respects the need for care in

instrument weather, cannot form the basis for liability in’

this.case. -

‘The proposed statistical comparison has no factual

basis or merit. Petitioners seek to lump together all models

16, When petitioners state, p. 5, that this action “arises out of

the 46th almost identical instance of structural failure in the flight, of

a Ponanza,” it should be kept in mind that in every other accident: ®

(1) g different model Bonanza with a different strength was involved ;

_ (2) a different pilot was involved; (3) the weather conditions dii-

feréd : (4) the other surrounding circumstances. differed. :

Argument # ow 39

of the Bonanza, and to lump together all other single-engine

civil airplanes, regardless of clean design or intended use

(Pet. p. 14), and to make an over-all comparison.

By comparing the Bonanza, which is used considerably

in cross-country flight involving varied weather conditions,

with a plane such as the Piper Cub, which almost invariably

remains close to the airport and rarely, if ever, encounters

instrument weather, petitioners are offering a distorted and

emeaningless picture. It is like comparing ice boats with

sail boats, and saying that ice boats are safer because 0 °

ice boat ever overturned in a tropical hurricane.

Furthermore, the changes between the original 55

model, and the D model here involved were, as the Court of

Appeals -has pointed out in its opinion (Pet. lla); suffi-

ciently substantial to justify treating the original model

and ‘the airplane involved in the present crash as dis-

similar airplanes. ‘It is ‘undisputed that these changes in-

volved first an increase in the limit design load factor from: |

3.8¢’s to 4.4¢’s which moved the-planes from the CAA’s

normal category to the utility category for certification pur-

poses, an@ increased gross weight. This improved the

structural stfength of the airplane, permitting it to do some -

. types of aerobatics not permitted the original model. ‘ihe

second significant change was to the dihedral and area of

the tajl which affectefl the plane’ s handling characteristics.

_ If the original model 35 is removed from:these sta-

tiation, and the same comparison made only for the

JA) B, C and D models, the figures change drastically in the.

Bonanza‘s favor. When separated out, the original model 35

“still compares flavorably, with the Cessna, models 190 and

_ 195, airplanes of comparable design, and has a more favor-

‘able rate than five other models of airplanes. And the

A, B, C and D models show rates which put them approxi-,

~~ mately in the middle. The plane involved in this case, as

noted above, was a mod D. bay es

- The reason given by thy ourt of Appeals for exclud:

ing these statistics-is in any event conclusive. As the Court

oe 4%. . Argument

pointed out, the’statistics tend to prove nothing more than

‘ . the individual accident reports, and it is extremely dubions

whether statistics involving probabilities have any signifi-

cance when applied to a particular incident (Pet. p. 12a),

Any expert who would testify on the statistics in-this case

would have to concede that structural failure in flight acci-

dents are the product of at least three categories of vari-

ables, each of which could be subdivided info many sub:.

headings. These categories are:

(a) The pilot, including his sapere, his emo-

tional and physical reactions and his abilities. >

(b) The airplane, including the factors which make

it difficult or easy to fly, its strength and its mainte:

nance.

eluding particularly the weather involved and whether

or not the area flown over is difficult.

Of course, in order to assign any blame to the airplane

arising from statisties of accidents, it would he necessary to

control the other two variables. The CAA figures do not

and, of course; cannot control any of these variables; henee

any statistical result is meaningless.

There is one additional special objection to the admis-

sibility of these statistics. The statistics are predicated

upon reports of the CAB. 49 U.S. C. § 581 providés that:

‘| . . no part of any report or reports of the

former Air Safety Board: or the Civil Aeronautics

Board relating to any accident, or the. investigation

thereof, shall be admitted as evidence or used in any —

suit or action for damages growing out of any matter

mentioned in such report or reports’’.

Since it is claimed that these accidents prove and are

notice of defective design, the action grows out of matters

mentioned in the reports themselves. This statute’ in itself

— _— Argtument - 41

would prohibit the admission of the reports which constitute.

the underlying data for the statistics. The underlying data

being inadmissible, the statistics which constitute a sum- .

mary of that underlying deta are siniilarly inadmissible.

For the foregoing reasons the statistics were properly ¢

excluded. In any event they failed to supply the proof that

is missitg ‘as to plaintiffs’ claim of negligence and cannot

affect the court’s‘ruling as to contributory negligence.

IV. THE DECISION BELOW IS CONFINED TO THE

- FACTS OF THE PRESENT CASE, DOES NOT AD-

VERSELY AFFECT THE RIGHTS OF OTHER LITI-

GANTS AND IS NOT BASED UPON THE FINDINGS

OF AN ‘ADMINISTRATIVE AGENCY. 7

The-primary basis of the decisions of the lower courts

was the contributory negligence of Prashker as shown by

the facts peculiar to this case. \There is no reason why

litigants who are bringing suits based upon different facts

and in entirely different actions should he adversely af-

fected, particularly in those cases which involve application

‘of the law of comparative negligence.” ‘Of course, the argu-

ment that plaintiffs in other cases will not be able to recover

unless they can rely on improper or irrelevant evidence

should not move this Court to permit these petitioners to

"rely on improper or irrelevant evidence. —

| 17. This Court may be interested to know that the pending cases.

referred t> on page 26 of the Petition should be regarded as a group,

and not as the separate contentions of numerous lawyers. One or

both of the attorneys for the Petitioners in this case is involved in

- every one of those cases, either officially or unofficially, with the-

exception of the Weissman case. Weissmari was a passenger in the

Prashker plane, and his estate being unable to get service on Prash-

ker’s Estate in Delaware. in the action referred to by. Petitioners in

which that Estate is a named defendant, has sued Prashker’s Estate

. in Pittsburgh on the theory that Prashker’s negligence was the cause

of this crash, and has recovered a very substantial verdict. In the

Cleminshaw case, although neither. of these attorneys are of record,

- Mr. Kreindler has taken depositions for the plaintiff, and we are

advised he will try the case if it is tried. -

42 - Argument

As to negligence, the Court of Appeals merely held that |

the proof was insufficient and did not establish any negli. -

gent design or failure to warn. Of course if other litigants

make a similar contention and fail to produce evidencé

other than that produced by the present petitioners, their

case will fail, but it will fail for lack of proof, and: not be-

cause of limitations imposed by this case.

Petitioners’ argument that the decision of the Courts

below was based upon findings of the CAA. is entirely un-

supported. Their suggestion that the Courts below used

evidence rulings as a subterfuge i is a ‘gratuitous insult to a

very fine District Court Judge and to the three judges of

the Third Cireuit who unanimously affirmed his decision,

It is true that we took the position in the Courts below that

_ Congress had given to the CAA and the C AB exclusive con-

trol over the design of airplanes flown in the United States.”

and that to permit a jury to overrule the findings of those

agencies on airplane design would produce chaos and ‘be |

contrary to the purposes of the Civil Aeronautics Act. We

also argued that the certification established a presumptien

of due care which could not be overcome on the. basis of the

obseure and contradictory testimony phrased in indefinite

~-and speculative terms by men who had never flown an~

airplane or witnessed a flight test of this type of airplane

(74c, 72c, 160a). We do not agree that ‘acceptance by the

‘lower Courts of either of these contentions would have been

to invite quick reversal by this court, but we do not elab-

_orate,this point here as it clearly formed no part of the

decisions below. Nor can we agreé that the Court.of Ap-

peals ‘‘expressed great interest in this proposition an its

questions to counsel on the argument below”’ (Pet. p. 26).

Of course, if certiorari were granted, we would again urze

these arguments as a further ground for sustaining the

judgments of the courts below.

The Court should not grant certjorari to review a ques-

tion not presented: by the record. |

= = F. CONCLUSION.

Courts’ decisions which have seen through the insubstan-

tiality and insufficiency. of’ the vast amount of materials

_ presented by the petitioners, petitioners have relied heavily

‘upon extra ‘legal reasons and facts not included in the.

record. Their arguments include - unjestned innuendos

about the lower Gourt judges. .

Petitioners have built up this record in the hope’ that —

with massive data they will be able somehow to deter a

court from taking the case from the jury and will be able to

get the sympathy of the jury by overw helming. it with

horror stories of prior accidents. Even now they are seek-

~ing to impress this court with slanted accounts of accidents,

the circumstances of which form no part of the record.

Both lower Courts after a careful examination of .the -

record have properly found that there was insufficient evi-

dence to justify taking further time of court and jury.

This court should not spend its valuable time reviewing this

record ine detail and the numerous narrow questions pre-

sented by it.

| The Petition for Certiorari should be denied.

, ra)

Re -spectf ully submitted,

N. CaRPENTER, II,

J.. Wettes Henperson, JR.,

Louis J. F1nGEr,

Blak <a E.. Wiccan,

‘Counsel for Respondent

Beech Aircraft Corporation.

Conclusion ars 43

The whole tone of the Petition for Certiorari is shrill -

and strident. In a desperate attempt to overcome the lower -

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.