139 Me. 234 | Me. | 1942
After a verdict for the plaintiff, this case is before us on the defendant’s motion for a new trial and on exceptions. We shall consider only'the motion.
The plaintiff was an employee of the Works Progress Administration which was doing certain construction work at the Lewiston & Auburn Airport. Stationed at the junction of two runways, he was charged with the duty of flagging trucks operating there if an airplane was about to land. The defendant was the operator of an airplane which in landing struck the plaintiff who received severe injuries for which he seeks to recover in this action. The negligence of the defendant is set forth in the writ in the following language:
“6. That while your said plaintiff was in the exercise of due care and caution, in the performance of his duties as such flagman, stationed in a position of safety, the said defendant, unmindful of his duties aforesaid, did carelessly, negligently and recklessly guide and operate said aeroplane; did carelessly, negligently and recklessly fail to have said aeroplane under proper control so as to be able to keep the same on the macadamized part of said runway; and did further carelessly and negligently fail to have the same under such control as to be able to bring the same to a stop without colliding with persons or objects on, or in the vicinity of, said runway; whereby said aeroplane collided with the person of your said plaintiff.”
The essential facts are not in dispute. The accident took place at or near the intersection of runways 3 and 4. Runway 3 ran northeast and southwest, runway 4 at right angles to it
As to the first point, every inference to be drawn from the evidence is that the defendant was landing at the particular place where he was supposed to land. He did not have latitude in picking any particular spot. He was restricted by the position of the runways, by their condition, and above all by the direction of the wind. The position of the flagman at the particular intersection is strong circumstantial evidence that planes'were expected to cross there as they might alight. There is no affirmative evidence that any other place was available or that conditions elsewhere would have been any safer.
The fundamental contention of the plaintiff pressed in oral argument is that the doctrine of res ipsa loquitur applies and that this case is governed by the decision in Chaisson v. Williams, 130 Me., 341, 156 A., 154. This is clearly indicated by the following statement in the plaintiff’s brief:
“The plaintiff at the time of the accident had no means of knowing what occurred to cause the defendant to operate the plane off the runway on to the safety band iri his direction. Under these facts and circumstances, after the plaintiff had presented all of the evidence of which he had knowledge concerning the occurrence of the accident, it became necessary for him to invoke and claim to recover under the doctrine of re ipsa loquitur.”
The mere fact of the happening of an accident is not evi
The doctrine was held applicable in Chaisson v. Williams where the evidence showed that an automobile ran off a highway and into a tree. “Automobiles,” said the court, page 346, “when operated by prudent persons, with reasonable care, do not usually leave the highway, and run headlong into the woods, until stopped by the stump of a tree. When they do, it is the extraordinary, and not the ordinary, course of things.”
And in Shea v. Hern on a similar state of facts it is said, page 366: “If the jury discovered no specific act of negligence, they had the right to infer it from the circumstance that the car was driven off the road.”
Counsel in their brief assume that the facts in the present case require the application of the same doctrine. They say: “If we accept the theory as laid down in Wilson v. Colonial Air Transport, Inc. (supra) it would seem that the rule governing cases in which automobiles leave the road are analagous to the present situation. We must, therefore, conclude that the macadam portion of a runway is similar to the macadam portion of a highway.”
We cannot accept counsels’ conclusion. The reasons which justify the application of the doctrine of res ipsa loquitur to the case of an unexplained accident in which an automobile leaves
We do not mean to lay down any generalization that the doctrine of res ipsa loquitur does not apply to airplane accidents. It has been held that it is applicable to á collision of airplanes in mid air where both machines are operated by the same agency. Parker v. James Granger, Inc., 4 Cal. (2d), 668, 52 P. (2d), 226. And negligence was held a question for the jury where the operator of a plane before landing did not wait for another plane which had just alighted to be removed from a runway and a collision resulted. Greunke v. North American Airways Co., supra. Neither of these cases is in point. An airplane can be so guided that a collision in mid air does not ordinarily happen without fault, and the operator of the plane involved in the Greunke case did not have to land until the run
In spite, however, of the vast advances which have been made in air transport it is still recognized that in all such operations there is a wide element of chance which the ingenuity of man has not yet overcome; and we accordingly cannot apply the doctrine of res ipsa loquitur to the same extent as we do to accidents on highways. Wilson v. Colonial Air Transport, Inc., supra; Herndon v. Gregory, 190 Ark., 702, 81 S. W. (2d), 849, 82 S. W. (2d), 244; Cohn v. United Airlines Transport Corporation, 17 Fed. Supp., 865.
In 83 A. L. R., note at page 369, we find the following statement with respect to the case of Stoll v. Curtiss Flying Service (1930; N. Y. Supreme Ct. N. Y. County, Trial Term, Part VI): “Where any one of a number of reasons may have been responsible for an aeroplane accident, for some of which defendant carrier would be liable, and for others of which it would not be liable, the jury is not at liberty to guess which caused the accident and attribute it to defendant carrier, but must find for it.” This case was affirmed without opinion. Stoll v. Curtiss Flying Service, 257 N. Y. S., 1010, 236 App. Div., 664.
And in 99 A. L. R., 192, in discussing the case of State use of Beall v. McLeod (1932; Md. Super. Ct.) we find the following: “The mere happening of an accident raises no presumption of negligence in the operation of the plane; and the burden is upon the plaintiff to establish, by a preponderance of the affirmative evidence, that negligence on thé part of the defendant caused the accident.”
The truth of the matter is that the facts of each case must be carefully considered, and in the days to come tested in the light of the advances in this art which we are certain to see. A discussion of this subject will be found in Hotchkiss, The Law of Aviation (2 ed.), Sec. 41. The author seems to argue for a wider application of the doctrine of res ipsa loquitur than courts have so far seen fit to give. At the same time he admits
As there is in the case now before us no direct evidence of any negligence on the part of the defendant, and as no inference of a want of due care arises merely from the happening of the accident, the action cannot be maintained.
Motion sustained.
New trial granted.