# Brief of Beech Aircraft Corporation in Opposition to Petition — Prashker v. Beech Aircraft Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0593%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Beech Aircraft Corporation in Opposition to Petition - **Published:** January 1, 1958 - **Citation:** 358 U.S. 910 ## Text — - ¢ 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, v. © 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. vv ‘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® + 34 ts 4) “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 — 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 , 20 to ¥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 \ 2 '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 49.U, ty a eee Lab eihpacesgdkshwweeelt cdeentsee ] try Cs he uw tm ty Be ne “a fev See Oe oe. 8 6.) 2.8 € @ 8:4 82.66.59 6 6.80 6426.9 25.40 8 6 9 6 SIs She a we e SRUEY: cuts conn dau ad viteae dl aad wes ee ewes | 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, v. 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 to . : . 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).. : eo Counter-Statement of the Case “y 3 C. COUNTER STATEMENT OF THE CASE. 1. Introduction. i) 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 rs y © + mmne > ® 4 * 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 } . : / . f 2 e- ‘ 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). : en 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. Os 6 Counter-Statement of the Case - 9 e 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 G 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 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 ) ma Tr 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 e G 2 . 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 “" we 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 | S 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 a 7 Argument ° . 19 t 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. is na * 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 Ss ; ; a | - ; | Argument . | a 21..." Ze. - td oe 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 a ‘@ 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 v? oo om 4 3 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. e . a ‘ 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 r 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 ir re from wheiee ‘hd came’? (297a). This was the © egti ee ee] — . me Ne eg LR ne Ne ca 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). + 1 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 / © for finding that the oscillations had any tendency, let alone "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. ~ o, 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 , | ~ Fs 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 nose is dropped . © .’’ (42b). _ 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. *. ' i 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 eo 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. (c) The whole comptes of flying conditions, in- 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. In so doing they have clearly applied the correct legal tests. © 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, YA Rosert E. Jones, © Blak