171 Pa. Super. 312 | Pa. Super. Ct. | 1952
Opinion by
From the discharge of a rule to show cause why judgment of compulsory nonsuit in this action of trespass should not be stricken off plaintiff brought this appeal. The facts, viewed in the light most favorable to appellant and giving him the benefit of all proper inferences to which he is entitled (Garvin v. Pittsburgh, 161 Pa. Superior Ct. 140, 53 A. 2d 906), are sub
On October 19,1947, he was flying alone on a return trip from Philadelphia to Dayton and between 7 and 7:30 p.m. approached the Lancaster Airport where he planned to land his plane for the night. It was dark when he reached Lancaster. Before leaving Philadelphia he- noted from Airman’s Guide, a United States Chamber of Commerce publication, that the Lancaster Airport was listed L-4 under “Lights”, which indicated “Beacon, boundary, obstruction, and flood” lights. (Emphasis added.) He, however, had not seen a supple; ment to the guide dated September 30, 1947, and did not think one was available at the time at the Philadelphia Airport. In the supplement under “Domestic Data” there appeared the following: “LANCASTER— LANCASTER ARPT: Drain-pipe on both sides NW/SE strip, mrkd-stay between red flags. Sinkhole extreme E end E/W strip — 2 holes S end N/S strip, mrkd. (3-12).” Whether or not he saw the supplement is not material since, as stated by the lower court, “the uncontradicted evidence is that the two holes indicated as marked in the Guide were not lighted to show the rock. pile which the plane of plaintiff struck. The entire area of the airport as it then existed was lighted.”
Appellant made the normal approach for landing, circling the field in’ three 90-degree turns; but, in watching the field and other aircraft in the “pattern”, on the turn into the final approach he was unable to orient himself with the green lights which designated the runways or landing strips, but saw there was sufficient landing space on the turf to set his light craft down without any difficulty. He landed at a normal speed of about 50 m.p.h., “rolled”, from the impetus of his flight, and taxied for about 400 feet, when, while proceeding at a speed of approximately 30 m.p.h., the plane struck a rock pile 5 feet in diameter and projecting 18 inches above the ground. The rock pile was not lighted nor was there anything to indicate its presence on the field.
The learned court below said: “These facts, it seems to the court, bring the plaintiff by analogy within the well established principle of law, namely, that where a person, having a choice of two ways, one of which
In Peavey v. City of Miami, 146 Fla. 629, where a pilot collided with an unlighted steam roller on a runway, the Court said (p. 632) : “Outside the runways, the field was of firm sandy soil covered with grass, suitable for landing purposes” (emphasis added), the inference being that it would not only have been proper but desirable for the operator of the airplane to have landed there. The place selected at Lancaster was sufficiently large and adequate in every respect for safe landing had it not been for the unlighted rock pile. In Magennis v. Pittsburgh, 352 Pa. 147, 42 A. 2d 449, plaintiffs were held to be guilty of contributory negligence as a matter of law for unnecessarily walking in the cartway of a street where a sidewalk was available. And in Barth v. Klinck, 360 Pa. 616, 62 A. 2d 841, the wife-plaintiff was held to be negligent in stepping over a barricade, three feet in height, at either end of which was placed a red light for the purpose of protecting pedestrians and warning them of the dangerous condition.
The applicable principle is' clearly and admirably stated in Garvin v. Pittsburgh, supra, 161 Pa. Superior Ct. 140, 53 A. 2d 906, where, in reversing judgment entered n.o.v., on. the ground of. contributory negligence
In the operation and control of an airplane it is the pilot’s duty to exercise ordinary care. He is not held to the highest degree of care that men of reasonable vigilance or foresight ordinarily exercise in the operation of a plane in making a landing on a runway in an airport, but he is bound only to use ordinary care. Murphy v. Neely, 319 Pa. 437, 179 A. 439; Davies v. Oshkosh Airport, Inc., 252 N. W. 602; Greunke v. North American Airways Co., 230 N. W. 618; Grain Dealers Nat. Mut. Fire Ins. Co. v. Harrison, 190 F. 2d 726; Long v. Clinton Aviation Co., 180 F. 2d 665. Appellant had a right to assume that the rock pile would be lighted at night, as indicated in the Airman’s Guide, and he was not bound to anticipate that such an obstruction would be permitted on the field without any warning whatsoever of its presence. “The failure to anticipate negligence which results in injury is not negligence and will not defeat an action for the injury sustained. A party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that ordinary care will be used to protect him and his property from injury. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act”: Wagner v. Philadelphia Rapid Transit Co., 252 Pa. 354, 359,
Appellees urge, upon us that appellant was a gratuitous licensee and that appellees were, therefore, “under no duty to warn . . . [him] of conditions which exist[ed] outside of the area covered by the license.” Restatement, Torts, §342, Comment f. They also urge that the only duty owed appellant by appellees “was to refrain from active negligence.” They argue that “At most, appellee was guilty of passive negligence by permitting an obstacle to exist upon the premises. Thus, the rule of nonliability on the part of the possessor of land to a gratuitous licensee for passive negligence is here applicable.” But, as stated in the opinion of the learned judge of the court below: “The defendants were the owners and operators of the airport upon which persons came by invitation. The duty imposed upon such owners and operators is clearly set forth in Beck v. Wings Field, Inc., 35 F. Supp. 953 . . . where Judge Babd, at page 955, stated: ‘The owner of premises, such as the defendant here, who owned, operated and maintained a commercial landing field for airplanes, upon which persons like the plaintiff came by invitation, express or implied, owes a duty to such persons to maintain the premises in a reasonably safe condition for the contemplated use thereof, and the purposes for which the invitation was extended. The defendant owed a legal duty to the plaintiff to use reasonable care to keep the premises in a reasonably safe condition so that the plaintiff in landing his aircraft would not be unreasonably exposed to any danger.’ ”
In Peavey v. City of Miami, supra, it was held (pp. 637, 638) : “. . . the city . . . was required to exercise the same degree of care in the maintenance of its property as is imposed upon others who undertake to render services or furnish accommodations to the public. . . . Therefore, it was the duty of the defendant to see that
When appellant was asked why he didn’t go up in the air and reorient himself before landing, he answered that it was because he had a “very obvious position to land in” which would have put him well within the boundary lights “and it did not appear necessary to make another circle of the field.” Is this, then, a case “where contributory negligence is so clearly revealed that fair and reasonable individuals could not disagree as to its existence”? Altomari v. Kruger, 325 Pa. 235, 240, 188 A. 828. In our opinion it is not; therefore it should not have been so declared as a matter of law. Rodgers v. Shaler Township, 164 Pa. Superior Ct. 558, 67 A. 2d 806.
What risk, if any, appellant assumed in landing off instead of on the runway after he had lost the green lights was a question of fact for the jury and not one of law for the court. Murphy v. Neely, supra. In that case, where the operator of an airplane was alleged to have been negligent in cutting the ignition rather than making an attempt to regain flying speed when the plane vias falling, the Court said (p. 440): “. . . if cutting the ignition was wrong, it was an error in judgment . . . Furthermore, as observed by the trial judge, ‘. . . the evidence is not sufficient to justify one in concluding that there is an accepted general opinion or practice with relation to the advisability of cutting off
The same logic applies to appellant’s not telephoning from Philadelphia to ask that the flood lights be turned on. In its opinion refusing to make absolute the rule to show cause why judgment of compulsory non-suit should not be stricken off, the court said: “He knew that defendants had flood lights but did not deem it necessary to avail himself of their use.” In all fairness to appellant it should be added that he did not know that “they would be put on on request for anybody that wanted to land at night.”
Only one other matter, not mentioned in the opinion of the court below, and mentioned here solely because the case must be retried, remains to be passed upon. Appellant offered to prove by an exceptionally well-qualified expert, who among other things had taught student pilots to land at the Lancaster Airport, the approved custom and procedure in the use of landing lights in landing an airplane at night. An objection to the offer was sustained. This, in our opinion, was error. In Beck v. Wings Field, Inc., supra, plaintiff alleged there was a depression in the portion of the flying field where he was attempting to make his landing and that the defendant’s maintenance of a public flying field with such a depression unmarked constituted negligence which was the proximate cause of plaintiff’s accident. An expert witness was permitted to state whether, in his opinion, the field was a safe
In conclusion it is our considered judgment that plaintiff’s alleged contributory negligence was not so clearly established that fair and reasonable persons could not disagree as to its existence and that it was, therefore, error to declare it judicially.
Judgment reversed and a new trial granted.