385 Pa. 520 | Pa. | 1956
Opinion by
The Susquehanna River is about 400 miles long and generally flows south and southeastwardly through Pennsylvania on its way to Chesapeake Bay. It is a picturesque stream which winds and curves with varying widths, sometimes attaining a maximum expansion of two miles. About one mile south of Millersburg, Pennsylvania, it is a half-mile wide and passes between two high hills collectively known as Berry Mountain. The broad passage between these hills is named the Berry Mountain Gap.
The Pennsylvania Power & Light Company, which manufactures, sells, and distributes electric current in this area, has utilized the elevations on either side of the river for the construction of steel towers, from which suspends an electrical transmission line carrying current from the eastern side of the river (Dauphin County) to the western side (Perry County). The towers, which are 40 feet high, are constructed of I-Beams and are planted, respectively, atop the eastern hill which is 680 feet high, and on the western hill which is 657 feet high. The line, formed of three copper cables, measures 5,515 feet in length. Since the air distance between the two towers is only 5,366 feet, an inevitable sag brings the line to a low point of 125 feet above the river level.
On the afternoon of May 11, 1950, a clear day with visibility unlimited, Morris B. Levitz, a licensed aviator, aloft in a single engine Piper Cub plane, wás piloting his craft southwardly through the Berry Mountain Gap when it struck the Pennsylvania Power and Light, transmission line at a point 185 feet above the river.
Up until the advent of the airplane, it was said that the rights of every property owner extended, eoterminously with the boundaries of his land, as high as the heavens. Legislation and court decisions during the last 50 years, however, -while still guarantying to every property owner the fullest heavenly enjoyment of his property, have taken away a part of the sky which he never could use anyway. Section 8 of the Civil Aeronautics Act of 1938, 49 U.S.C.A. §403, declares: “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable air space of the United States.” Navigable air space is defined as “air space above the minimum altitudes of flight pre
The right of flight in navigable unused air space is now as constitutionally established as the right to walk through the public square. No one, beyond the extent of the enjoyment of his property as laid down by law, can infringe upon that right of flight. Restatement, Torts, §194, says: “An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted, (a) for the purpose of travel through the air space or for any other legitimate purpose, (b) in a reasonable manner, (c) at such a height as not to interfere unreasonably with the possessor’s enjoyment of the surface of the earth and the air space above it, and (d) in conformity with such regulations of the State and federal aeronautical authorities as are in force in the particular State.”
Comment a under §194 declares, iuter alia: “The aeronaut in his exercise of his privilege of lawful flight has a right as against the possessor of the land that the latter shall not unreasonably interfere with the exercise of his privilege.”
Although the record does not specify the purpose of Morris Levitz’s flight, it is not contended by anyone that he was engaged in anything but a legitimate mission. The lower Court came to the conclusion that Levitz in his flight violated certain Federal and State regulations. Section 58 of The Pennsylvania Civil Aeronautics Regulations (promulgated by authority of The Aeronautical Code of Pennsylvania, Act of May 25, 1933, P. L. 1001, as amended) provides that: “Exclusive
“Minimum safe altitudes. Except when necessary for take-off or landing no person shall operate an aircraft below the following altitudes: (a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface; (b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft ... (e) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure . . .”
The Court of Common Pleas of Dauphin County held that as between the State and Federal criteria of permissible minimum altitude, the Pennsylvania regulations prevailed at the time of the collision. If there
The learned Court below was of the view that at the time the pilot fell he was not flying over open water. In this respect the Court said that within a stretch of 12% miles three transmission lines cross the river, that two islands and numerous islets occupy the stream, that the borough of Liverpool is “a short distance” (3% miles) north of the transmission line, and that there is one dwelling within 400 feet (the record says 400 yards) of the line on the Perry County side. But these geographical observations do not decide whether the river itself at the point of the accident was open water. The term “open water”, as used in the regulation, must be interpreted in the light of its land equivalent, “sparsely populated area.” The witness Clarence W. Hunter testified on this subject as follows: “Q. On May 11, 1950, that was the date of the accident which you have previously described, will you tell us whether there are any homes in the area underneath the electric transmission line on the Dauphin County side? A. No, sir. Q. Will you tell us please whether there were any homes on May 11, 1950, under the electric transmission line on the Perry County side? A. No, sir.” He testified also that 300 or 400 yards north on the Perry County side there were two homes and a hotel. Three human habitations some 1200 feet from the locus in quo on only one side of the river could not mate the area anything other than “sparsely populated.”
In holding that the accident did not occur on open water, the Dauphin County Court seemed to believe that open water is a synonym for open sea, but if that were true, then the phrase “sparsely populated area” in the Federal regulation would lose all significance, because, in comparison to the vast emptiness of the ocean, only a Sahara desert could qualify under the designation of “sparsely populated area.”
Apparently carried away by its misconception of the meaning of “open water,” as used in the Regulation, the Trial Court cited the case of United States v. Rodgers, 150 U.S. 249 in asserted support of its position. But the Rodgers case can have no possible relevancy to the question as to whether there can be open water on the Susquehanna. The Rodgers case decided the question as to whether the term “high seas” in a Federal statute applies “to the open, unenclosed waters of the Great Lakes.” The opinion in the Rodgers case did not accept the term “open”, (as did the Dauphin County Court), as being equivalent to “unenclosed.” Many times in the opinion it used the two words, “open, unenclosed”, as describing the high seas. Justice Field, who wrote the Rodgers opinion, in referring to an opinion written by Justice Story in the case of United States v. Grush, 5 Mason 290, said: “It was the open, unenclosed waters of the ocean, or the open, unenclosed
The Dauphin County Court, by saying: “This opinion [the Rodgers opinion] refers to ‘rivers, havens, creeks, basins, and bays’ (page 263) generally as being different from ‘open, unenclosed waters,’ ” endeavored to convey the idea that the Susquehanna River could never have open water because “rivers, havens, creeks, etc.” are different from “open, unenclosed waters.” But the quotation to which the lower Court referred, did not at all hold what the Dauphin County Court contended for it. This is what the Rodgers case said in that quotation at page 263: “It does not seem reasonable to suppose that Congress intended to confine its legislation to the high seas of the ocean, and to its navigable rivers, havens, creeks, basins, and bays, without the jurisdiction of any State, and to make no provision for offences on those vast bodies of inland waters of the United States.”
As already indicated, the Rodgers case has no possible relevancy to the issue before us here, and it may be said in passing that indiscriminate citations of this character can only lead to confusion in the law.
It will be recalled that the Federal regulation forbids that an aircraft, when over open water, fly within 500 feet of a person, vessel, or structure. It is true that there is evidence in the record that Levitz did pass within 175 feet of a steamboat but he did not do it under the circumstances visualized by the Dauphin County Court which said: “The deceased flew his plane within 175 feet of a steamboat in operation and crashed into the transmission line.” The picture painted by these words portrays Levitz precipitately descending
Because, for an evanescent moment, Levitz’s course of flight took him within 175 feet of the passing steamboat, the Dauphin County Court held that he violated the Federal regulation in such a manner as to justify the compulsory nonsuit entered against the plaintiff. But the plane’s proximity to the steamboat had nothing to do with the wire collision and therefore should have played no part in the Court’s consideration of the motion for a nonsuit. In Salvitti v. Throppe, 343 Pa. 642, 644, we held that: “A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type.” This Court said further in that case, as we can say here, that: “Since, however, the accident was not a result of the hazard contemplated by the statute, the violation of the latter was an irrelevant factor.” A traveller is not burdened with an accumulation of all the untoward incidents which have happened to him on his journey. A motorist who passes a red light in Camden is not prevented, because of that fact, from re
In further attempted support of its reasoning on the point of law just mentioned, the lower Court said: “Where there is no controversy concerning the manner in which an accident has happened, the proximate cause thereof may be judicially declared.” This observation presupposes what is not established. There is controversy in this case concerning the manner in which the accident happened — considerable controversy. The plaintiff contends that Levitz was killed because the defendant had strung its wires across the river in such a manner as to make them invisible to airmen. The defendant denies that this is true. The plaintiff further contends that the towers supporting the wires were hidden behind the topography and vegetation of the land and thus were not perceptible to pilots approaching the transmission line. This is also denied by the defendant. These two elements of factual controversy alone, aside from others in the case, render it impossible for a trial court to decide, as a matter of law, the proximate cause of the collision here involved.
The lower Court sought to make factual findings which were not within its province to make. It said that the deceased pilot came to grief because he flew too low. If he had flown higher the accident would never have occurred, the Court below argues: “Altitude gives the flyer room and freedom to maneuver, enables him to view conditions on the ground in a broad field of vision and gives the flyer time to prepare for those conditions. These observations are clearly supported by the testimony in this case. Should there be an engine failure, there is nothing a flyer is so thankful for as altitude.” This is an observation which does not answer all the questions which logic could propound. It
The lower Court said further: “The decedent chose to sacrifice the safety of altitude. He chose to fly below the top level of the mountain instead of over it. Flying along the river at this low altitude will only admit of one of two inferences, neither of which can help the plaintiff’s case. Either the deceased knew or he did not know of the existence of the wires. If he knew of the transmission line, he should not have come down. And if he did not know of the existence of the line, clearly he should not have flown in that area at that height without knowing the terrain.” Herein lies one of the major fallacies in the learned lower Court’s decision and opinion. It frequently speaks of terrain, thus applying to this case rules which might apply to overland flights, but not to overwater aeronautics. Thus, the Court says: “At low altitudes there is always danger of coming in contact with objects on the ground, and this danger must be known to every pilot. A pilot flying at an altitude of 125 feet is bound to know there is danger of encountering obstacles on the ground. One of the dangerous consequences to be reasonably apprehended in low flying, as revealed in this evidence, is coming In contact with structures on the ground
The Dauphin County Court said that Levitz was “flying at this unusually low altitude in an area where he was in no sense required to be in the careful operation of his plane.” There is no evidence that he was not required to be where he was. There was no testimony as to his destination or the nature of his mission. Nor does the evidence exclude that he could have been making an emergency landing. The fact that witnesses heard no unusual sounds from the plane’s engine does not prove that the pilot may not have found himself confronted with some other situation which required him to descend to the river’s surface.
Nor did the pilot’s flight have the Himalayan aspect which might be suggested by the lower Court’s language, i.e., “He chose at this low altitude to fly between mountain peaks and over dangerous waters.” The “mountain peaks” were about the height of a good-sized hill in a lowland, and the “dangerous waters” were the placid, scarcely moving pools of the Susquehanna, known in the country round and to all tourists visiting eastern Pennsylvania to be as dangerous as a millpond or a sleepy brook.
The rationale of the lower Court’s argument as reflected in its filed opinion would suggest that the plain
“Any use of such air or space by others which is injurious to his land, or which constitutes an actual interference with his possession or his beneficial use thereof, would be a trespass for which he would have remedy. But any claim of the landowner beyond this cannot find a precedent in law, nor support in reason
Even if the defendant company had hung its wires over land to which it had a fee simple title it still could not be indifferent to legitimate air traffic passing over it. In the case at bar, however, the defendant did not own the land beneath its transmission line. The line stretched across the Susquehanna Eiver. The bed of the river is property of the Commonwealth. In 1856, speaking of the Cowanesque River, this Court said that
The defendant company possesses no proprietary rights in the Susquehanna River and can in no way label as trespassers boatmen on the water or airmen above the water. No one can curtail the rights of a citizen using the rivers of the Commonwealth in aequatic or aerial navigation, so long as the citizen remains within the laws and regulations prescribed by the constituted authorities.
In its brief filed here the defendant says: “There was no need for Levitz to be where he was (the river not being directly beneath a federal airway).” But this statement ignores the highly useful purposes of a river to a pilot of small aircraft flying by visual observation alone. A river is to such an aeronaut what a curbstone is to a blind man with a cane, guiding him through unknown and unseen territory to his destination.
The Dauphin County Court proceeded throughout this litigation on the mistaken assumption that the defendant company was a landowner entitled to all the rights of a landowner in the space above his land. But whatever rights the defendant company had in the space above the river because of its transmission line
The defendant stresses the fact that it had obtained license or consent of governmental authorities to span the river with its wire, but this license did not immunize the company from responsibility for negligence or for creating a hazard to the public. What was said in the case of Seaboard Air Line R. Co. v. The Pan Maryland, DC-Ga., 105 F. Supp. 958-964, would be applicable to the case here: “It is inconceivable that there could be any basis in law or in fact for Seaboard’s contention that once its bridge was approved by the Secretary of War, it could not constitute a hazard and that, in the absence of a specific directive from the Secretary of War to alter the bridge, the Railroad was powerless to initiate any steps toward correcting the extremely hazardous and unsatisfactory condition existing at the bridge insofar as navigation was concerned.”
The lower Court seemed to be of the impression that the defendant company owed Morris Levitz no duty at
But the power company, of course, owed more than a negative duty to the deceased pilot. That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care: “Vigilance must always be commensurate with danger. A high degree of danger always calls for a high degree of care. The care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question.” MacDougall v. Penna. Power & Light Co., 311 Pa. 387, 396.
Did the defendant measure up to its responsibility in this regard? Was it negligent in the manner in which it erected and maintained its installation at Berry Mountain Gap? We said in Adley Express Co. v. Willard, 372 Pa. 252, 258 that: “The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm . . ., resulting from his act.”
The plaintiff reasonably contends that the defendant could well have anticipated and foreseen the likelihood of harm resulting from the manner in which it maintained its installation at Millersburg. There was
The Susquehanna River in the Millersburg area is an excellent guide for the pilot because it is easily distinguishable from the air on account of its width, unique contour, and containment of islands, as well as the fact that it is flanked by two highways and a railroad. In adhering to river courses, pilots are on the alert for bridges, cables, transmission lines, and all other types of spans traversing the stream. Transmission lines are ordinarily detected with facility because of their supporting towers which rise on either side of the river and because the wires themselves are of a texture or color which make them conspicuous. However, it is the position of the plaintiff in this case that the transmission line of the defendant into which Levitz crashed with fatal results was made of such material that it blended into the atmospheric coloration and thus was not visible to the naked eye. Also, that the towers on the hilltops holding up the wires were concealed within trees, bushes, foliage and rock which hid them entirely from the vision of the aviator. Lowell R. Wright, aeronautical consultant, testified that he flew over the defendant’s installation and could not see the towers or wires although flying at an altitude of 800 feet.
The plaintiff presented considerable testimony, to which the lower Court scarcely made any reference in
If so marked the towers would have been visible two or three miles away to a pilot flying at only 500 feet altitude.
He also testified with regard to a transmission line 13 miles south of Clarks Ferry: “But they are using a different type of towers. You can see the towers ten miles away. You can see the lines, you can see the wires because they happen to be aluminum coated. These other wires, you can’t; they blend into the foliage on the ground. You can’t see them at all.”
It appears that the supports for the transmission lines are usually four-legged towers, whereas the defendant company’s supports were single, narrow I-beams completely buried within the surrounding trees and foliage. The removal of the encompassing vegetation would have brought these beams within the range of the vision of airmen in the area. The wires also, it was testified to, could have been made conspicuous by applying over them an aluminum covering.
There was testimony that on the day of the accident, when Levitz was a mile and a half from the transmission line, he was flying at an altitude of from 500 to 600 feet. It was a question for the jury to determine whether, if the towers had been marked as described or if the vegetation cloaking them had been removed, Levitz could have seen them and thus been warned of the transmission line ahead. It was testified also that with the Piper Cub’s cruising speed of from 70 to 80
- The lower Court devoted some discussion to the question whether custom and usage were to be considered in deciding whether transmission lines have been properly erected, marked and maintained. The issue here is not one of custom. It is whether the defendant Maiiitained its line in a manner which displayed a due regard for the safety of others. In developing the theme that the line was not maintained with due care, expert testimony is permissible to show how, in the opinion of the expert, the line should have been constructed and maintained. In this respect, the expert may draw on his knowledge and experience with regard to other comparable towers, this, not to show custom and usage but to illustrate, explain and expound his opinion on proper maintenance.
Section 290 of the Restatement, Torts, points out that: “For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is assumed to know (a) the qualities and habits of human beings and animals and the qualities, characteristics and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.”
Did the presence of the numerous air bases and the activities of the numerous airplanes in the vicinity of Millersburg constitute a situation which put the defendant company on notice that its transmission line could be an obstruction to air navigation? If it did, the defendant owed a high degree of care to aviators approaching or passing over that transmission line. If, in fact, its towers and transmission line were invisible to aviators using their normal faculties for detection,
Comment d under Section 500 illustrates this principle: “If the actor’s conduct is such as to involve a high degree of chance that serious harm will result from it to anyone who is within range of its effect, the fact that he knows or has reason to know that others are within such range is conclusive of the recklessness of his conduct toward them. It is, however, not necessary that the actor should know that there is anyone within the area made dangerous by his conduct. It is enough that he knows that there is strong probability that others may rightfully come within such zone.”
The defendant formally admitted that it did nothing to acquaint pilots with the existence of its towers and transmission line. In answer to an interrogation
Whether the defendant knew of the dangers attendant upon its transmission line was a question of fact to be determined not only from all the physical conditions surrounding the installation, including the considerable aircraft activity in the area, but also from the knowledge it possessed that another plane had already collided with the wire prior to the Levitz accident. The plaintiff produced evidence that on October 7, 1947, an Aeronca airplane piloted by Lawrence Seifert struck the defendant’s transmission line. This evidence was relevant and proper. In the case of Ringelheim v. Fidelity Trust Co., 330 Pa. 69, 71, this Court, speaking through Justice Stern, now Chief Justice, said: “Authorities are almost unanimous in holding that evidence of the occurrence of similar accidents is admissible for the purpose of establishing the character of the place where they occurred, their cause, and the imputation of notice, constructive at least, to the proprietors of the establishment, of the defect and the likelihood of injury.” ;
The plaintiff offered to show that on December 5, 1950, still another accident occurred when a helicopter collided with the transmission line. The Trial Court excluded evidence of this later accident, but it has been held that such evidence is proper if it sheds light on the question as to whether the defendant exercised reasonable care or not. In Fisher v. Pomeroy’s, Inc., 322 Pa. 389, the plaintiff was injured when, her heel catching in the corrugations of a metal tread in a stairway maintained by the defendant’s department store, she fell and was injured. There was testimony of other incidents of injury both preceding and following the ac
It is of significance that although the defendant objected to the introduction of testimony on the first and third accidents at the transmission wire, it admitted in its brief that these accidents had occurred and argued that this was proof that the wire could not have been a very dangerous instrumentality. The following is taken from the brief filed by defendant’s counsel: “As to the risk not being an unreasonable one, we add the thoughts expressed by plaintiff in his own brief where he clearly sets forth that within a 60 mile air radius of the power line there were registered 113 air fields and 1352 airplanes,. . . and yet in a period of over seven years there resulted only a total of 3 collisions with the wire! We know of no more forceful argument that demonstrates the slight risk of harm to aviators flying carefully and lawfully.” (Exclamation point in defendant’s brief.)
Three airplane collisions (one resulting in death) may seem to the defendant as being but a “slight risk of harm to visitors”, but the law does not allow anyone to install or maintain any instrumentality which to his knowledge may pull airplanes down from the sky and inflict serious injury or death on their occupants. The fact that since the wire was strung across the river, three airplanes have struck it, is an item of evidence to be considered with the rest of the testimony in determining whether the installation was one likely to cause injury.
Whether Levitz had these maps with Mm on the day of the accident is not the vital feature of this testimony. What is of importance is that two standard maps of the locality fail to reveal the dangerous instrumentality maintained by the defendant, and, as such, it is evidence to be considered in connection with the plaintiff’s contention that the transmission line and the towers were obscured or concealed.
The defendant says in its brief that: “The social value of the electrical industry’s contribution to the public interest is beyond computation or description even though it may exact a certain toll of human life as its price.” (Italics in original text.)
Accepting this statement as a basis for reflection, there is no reason, where preventable, that there should be any toll of human life. We said in Brillhart v. Edison Light & Power Co., 368 Pa. 307, 312, quoting with
One other point will be considered. The Trial Court allowed, on the basis that the statement was part of the res gestae, a witness, Chas. O. Barner, to testify as follows: “I made the remark about the plane flying low.” Without ruling on whether this was properly res gestae, we deem the testimony inadmissible because it expresses a view which is too indefinite and merely comparative. It has no more probative value than the expression of a witness that an automobile was “travelling fast.” (Wertz v. Shade, 121 Pa. Superior Ct. 4, 9.)
Reversed with a venire facias de novo.
The lower Court speaks of the collision., as having occurred at the 125-foot level. No one. testified that the mark of impact was at this level, although there was testimony that it occurred at .the.
Emphasis throughout, supplied, unless otherwise noted.