148 Misc. 849 | New York County Courts | 1933
In July, 1931, the plaintiff was the owner of an electric transmission line, crossing through the town of Brighton, at the intersection of the Barge canal with the East Henrietta road, so called. This line was carried on steel towers, fifty feet high. On the fourteenth day of the month, at'about ten o’clock at night, the defendant, who was flying an aeroplane in the vicinity, crashed against the tower, bending it over and damaging it to the amount, as claimed, of $545, to recover which this action was brought, plaintiff alleging, in two separate counts, negligence and trespass. The defendant counterclaimed, but no appeal has been taken from the dismissal of the counterclaim in the court below, so no question concerning it arises upon this appeal. At the close of the plaintiff’s case the court dismissed the cause of action based on negligence, and, after the proofs were in, submitted the question of trespass to the jury, having denied the plaintiff’s motion for a direction of verdict for the amount of damages sustained. It was the plaintiff’s con
The defendant’s evidence was to the effect that he was flying about 2,000 feet high, from Penn Yan to Rochester, intending to land at the Rochester airport, when, as he was within three or four miles of the airport, his engine, from some unknown cause, stopped. In his attempt to make a landing, and not seeing the tower in the night time, he came against it. The plaintiff, of course, offered no evidence as to the cause of the collision.
The plaintiff claimed, in the court below, the right to recover on the basis of negligence, on the theory of res ipso loquitur, and raises that point upon appeal. For reasons shown hereafter, I am of the opinion that the court below correctly determined that question.
The further question is, whether the court below should have held that there was a trespass as a matter of law. On the subject of trespass, there seems not to have been any question for a jury. Assuming that there was a trespass, it may be that the jury had a right to determine the amount of damages, but whether or not there was a trespass, should have been disposed of as a matter of law. There was no dispute of fact. The defendant, flying over the plaintiff’s land, came in contact with plaintiff’s tower and injured it. That was the defendant’s own testimony, and it permitted no variety of inferences. '’What then should the court have decided on the subject of trespass? This involves the broader question, What is, or is to .be, the law regarding the ancient maxim, “ Cujus est solum ejus est usque ad coelum?” Not to go beyond the necessities of this case, it may be confidently stated that if that maxim ever meant that the owner of land owned the space above the land, to an indefinite height, it is no longer the law. As said by the United States Circuit Court of Appeals, in Swetland v. Curtiss Airport Corporation (55 F. [2d] 201-203): “ In every case in which it [the maxim referred to] is to be found it was used in connection with occurrences common to the era, such as over-hanging branches or eaves. These decisions are relied upon to define the rights of the new and rapidly growing business of aviation. This cannot be done consistently with the traditional policy of the courts to adapt the law to the economic and social needs of the times. * * * we cannot hold that in every case it is a trespass against the owner of the soil to fly an aeroplane through the air-space overlying the surface.” (See, also, Smith v. New England Aircraft Co., 270 Mass. 511.) It is plain, however, that outside of the sovereign police power, no rule has been or will be made, which abridges the
The above and other cases are cited by the respondent’s counsel to prove that the doctrine of res ipso loquitur did not properly govern in the case at bar, and for the reasons given by him in his brief in the following words: “ It is common knowledge that airplanes fall in a great many instances from causes over which the pilot has absolutely no control. Time and again we read in the newspapers where a complete inspection of the plane is made before starting and that for some unknown reason the engine stops requiring a forced landing which often results in a crash.” The correctness of that statement we believe cannot be questioned, at least in the present state of aircraft development. When, therefore, a man takes over another man’s land a machine which he knows is liable to crash upon and do injury to that land and the structures upon it, can it be said that he is an accidental trespasser within the meaning of those decisions which have exempted the trespasser from liability? It seems to me that the plaintiff proved one or the other of its causes of action. If it can be said from human experience that an aeroplane will not fall except through negligence, then the plaintiff proved a prima facie case under its first cause of action. If, on the other hand, common experience requires the opposite conclusion,
The judgment appealed from is reversed and a new trial ordered, with thirty dollars costs and disbursements to the appellant.