Opinion
No. 35971
Decided January 27, 1960.
Negligence — Commercial airplane a common carrier — Degree of care required — Tower radio broadcasts advising of traffic and directing landing — Collision with navy aircraft — Responsibility of pilot — To avoid collisions — To observe traffic at all times — Jury question whether proper degree of care exercised — Proximate cause.
APPEAL from the Court of Appeals for Cuyahoga County.
In the early dusk of June 27, 1954, the wind over Port Columbus was out of the northwest quadrant and blowing at five to ten miles an hour. Because of the wind direction, only two runways at the airport were being used for takeoffs and landings — runway 27, which lies on a compass heading of 270 degrees or due west, and runway 30, on a heading of 300 degrees or roughly northwest.
American Airlines flight 572, inbound from Dayton, when over the fan marker at Hilliards about eight miles west of the airport, called the airport by radio, gave a routine position report and advised that the flight was operating under VFR (visual flight rules).
The tower radio operator at Port Columbus, an employee of the Civil Aeronautics Administration, acknowledged the position report and advised flight 572 to use either runway 27 or runway 30. At the same time, the tower operator informed the flight of wind direction and velocity and gave it the correct altimeter setting. The captain-pilot of flight 572 requested permission to use runway 27 and to make a right turn to it. He received radio approval as to both requests.
Flight 572 continued its approach to the airport, the airplane flying downwind in an easterly direction roughly parallel to runway 27. Upon completion of this downwind leg of the landing, the airplane was turned to the right on the base leg of its approach and ultimately was turned to the right again into its final approach, being lined up with the runway in the direction the landing was to be made.
While the airplane of American flight 572 was on this downwind leg of its landing, a TWA Martin airplane, flight 377, was cleared by the tower to make a straight-in approach from the east to runway 27.
At about the same time, a Navy Beechcraft airplane, with call number 773, reported its position over downtown Columbus, about seven miles southwest of the airport, and requested permission to use runway 30 for landing. This permission was granted, subject to traffic. The next radio broadcast to the Navy airplane was as follows:
"Seven seven three, continue approach for runway three zero. Traffic [meaning other aircraft in the vicinity] is on final approach [the TWA, flight 377] and also on right-hand downwind [the American, flight 572] for runway two seven. I'll get you in on three zero as soon as practical."
After a broadcast to the TWA airplane concerning its landing traffic and another to a taxiing airplane on the ground, two successive broadcasts from the airport tower, one to American flight 572 and one to the Navy Beechcraft, were made as follows:
"Five seventy two will be number two to land on runway two seven, traffic is a TWA Martin about three out and Douglas one two Fox, taxi southeast without delay then east on the taxi strip that parallels runway two seven."
"Seven seventy three, I have you in sight. I suggest that you follow the TWA Martin or make one circle of the field. I have traffic taxiing on runway three zero and two on the downwind leg for that runway. Continue seven . . . Continue your approach for runway two seven, seven seventy three."
The testimony of the officers in charge of American flight 572 was that they did not hear the broadcast advising the Navy airplane to also follow the TWA airplane.
Then followed a series of tower broadcasts which tersely reveal the events of the ensuing seconds:
"Seven seven three continue approach.
"* * *
"Navy two eight four [on ground] I still have two aircraft inbound for landing runway two seven.
"Seven seven three, I have two aircraft on the final approach, one is American Convair high and you appear to be slightly behind and to the right, is that correct?
"Seven seven three, affirmative, make a three-sixty or make a circle of the field and follow the American Convair.
"Five seven two, cleared to land.
"Five seven three [ sic] pull up and go around that Navy aircraft just struck you."
The Navy airplane burst into flames and plunged to the ground. Both its occupants were killed.
The airplane of American flight 572 continued its landing and made a normal touchdown. However, when the weight of the airplane began to settle on a damaged nose wheel, the wheel collapsed and the airplane skidded to a stop with its nose on the runway.
Most of the passengers in the airplane were evacuated through the front passenger door. However, there is evidence that the plaintiff, a passenger, was instructed by the airplane stewardess to leave by sliding down a cotton rope from the rear service door, which door, because of the nose of the airplane being down, was elevated above its usual position. In so doing, the plaintiff burned and very seriously injured her hands.
In this action for personal injuries by plaintiff against the defendant, American Airlines, Inc., a Cuyahoga County Common Pleas Court jury returned a verdict for plaintiff in the amount of $12,500, and judgment was rendered on the verdict. With a memorandum opinion, the Court of Appeals for Cuyahoga County, with one judge dissenting, affirmed the judgment of the trial court.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Sindell, Sindell, Bourne Disbro and Mr. Richard M. Markus, for appellee.
Messrs. Arter, Hadden, Wykoff Van Duzer and Mr. Edward D. Crocker, for appellant.
Although defendant asked for neither a directed verdict nor judgment notwithstanding the verdict in the trial court, it contends here that it is entitled to final judgment because there is a total absence of evidence establishing any liability on its part. The determination of whether that is true or not has required a complete review of the record.
The entire sequence of transmissions from the tower radio was made simultaneously on two frequencies, one used by the Navy and the other by commercial aircraft, including defendant. Thus both the Navy airplane and the American airplane could hear all transmissions from the tower, although they could not hear transmissions from each other. The captain and the first officer of the American airplane were using headsets for the receipt of radio transmissions from the tower. They heard every broadcast from the tower (a transcript of those broadcasts was an exhibit in the trial) except the one critical transmission which would have warned them that the Navy airplane had been instructed to pursue the identical final approach given to them.
Although it was qualified somewhat as to the type of distractions that might cause a flight officer not to hear a particular transmission, the testimony of the first officer in connection with this longest single transmission was as follows:
"Q. Well, let me put it this way, then: The only reasons that you wouldn't hear transmissions from the tower are that you either aren't paying attention, or you are distracted by something else you are doing? A. Well, that . . .
"Q. Is that fair? A. Yes, I think that would be a fair statement.
"Q. Now, there are two of you in the plane who are supposed to be listening to the radio, is that right? A. That's right."
Although the captain and the first officer denied hearing the instructions given the Navy airplane to also follow the TWA, both of them recalled hearing the transmission that indicated that the American and Navy airplanes were on the same final approach, with the Navy airplane below, behind and to the right of American. But immediately preceding this transmission, the tower radio advised another Navy airplane, number 284 (presumably on the ground), that "I still have two aircraft inbound for landing runway two seven." (Unfortunately, the log of radio transmissions does not indicate the time lapse between broadcasts. The tower operator, however, testified that the entire lapse of time between the first position report from American flight 572 and the collision was five minutes.)
As one explanation for not hearing the transmission which put both airplanes in the same pattern, the testimony of the officers of American flight 572 was to the effect that the Navy airplane was not "traffic" for them because they believed it was using runway 30.
It is apparent, however, that the American and the TWA airplanes approaching runway 27 were considered by the tower operator as traffic for the Navy airplane even when it was approaching runway 30. The broadcast, admittedly heard by the American officers, was:
"Seven seven three, continue approach for runway three zero. Traffic is on final approach and also on right-hand downwind for runway two seven. I'll get you in on three zero as soon as practical." (Emphasis added.)
The following excerpts of testimony, all elicited from either the captain or the first officer of the American airplane, are pertinent:
"Q. Here we are. Read for the jury this one here. A. (reading) `Responsibility of pilot. When flying in visual flight rule weather it is considered the direct responsibility of the pilot to avoid collision with other aircraft. Under such conditions the information and clearances issued by the control tower are intended to aid pilots to the fullest extent in avoiding collisions.'
"Q. Thank you, and were you, by the way, flying in visual flight rule weather? A. We were.
"Q. Therefore, it would be your understanding, also, that in those conditions the information and clearance issued by the control tower were intended to aid you to the fullest in avoiding collisions. A. That's right.
"Q. The responsibility remained yours? A. That's right.
"* * *
"Q. In connection with the clearing either to approach or to land, and your responsibility in that, I wonder if I could read to you a section of the Pilot's Radio Handbook of the CAA, and ask you whether or not you think that this is a fair approximation of the rule that you ordinarily follow: `In this connection a clearance issued by the tower, such as cleared to land, either by radio or visual signal, is permissive in nature and does not relieve the pilot of the responsibility of exercising a reasonable degree of caution in executing the provision of the clearance.' Is that correct? A. That is correct.
"* * *
"Q. At all times and especially at that time the responsibility rested with you to find out about their aircraft within the vicinity of the airport, isn't that true? * * * A. Yes, we are supposed to observe traffic at all times.
"* * *
"Q. Captain, the fact that you were clear to land No. 2 by the tower doesn't relieve you of the direct responsibility of looking for other aircraft, does it? A. No, it does not.
"* * *
"Q. Suppose the tower makes a mistake, does that ever happen? A. Yes it does.
"Q. Who is supposed to watch out? A. Naturally, it all rests on the pilot.
"* * *
"Q. Now, while you do have that regulation regarding your conduct in the control zone, I will ask you if there are any other regulations regarding the pilot's duties to observe for traffic and, if so, what in general is that? A. Yes, sir. Those regulations are to the effect that the pilots should observe traffic at all times, and that they are responsible for any traffic.
"Q. That is the direct responsibility of the pilot, is that right, sir? A. Yes, that's correct.
"* * *
"Q. Captain Pollard, tell us when, if at all, you knew that the naval Beechcraft was operating in the vicinity of the airport. A. I believe sometime, the time we entered downwind or possibly a little before, then, we realized that there was a Navy Beechcraft, told making an approach for 30.
"* * *
"Q. Did you ever look to find out where he was? A. Of course, we observed the traffic at all times.
"Q. Well, did you observe him? A. I never observed him, no.
"Q. At no time at all? A. At no time.
"* * *
"Q. * * * when you were on downwind leg, did you specifically look for this specific airplane, the Beechcraft? A. Yes.
"Q. Did you see it? A. No.
"* * *
"Q. When you were on base leg, did you specifically look for the Navy aircraft? A. Yes.
"Q. Did you see it? A. No.
"* * *
"Q. Now, sir, I was asking you why you specifically looked for this specific aircraft if you did not consider it to be traffic? A. Well, you always like to know where they are.
"Q. Well, isn't that because you think there might be some possible danger of collision? A. I suppose so."
The defendant here is a common carrier. As such it owes a duty to exercise the highest degree of care for the safety of its paying passengers. One phase of that duty required the officers in charge of its airplane to maintain a lookout for other aircraft and to avoid, if possible, a collision therewith. It is apparent that at some point in the landing pattern of the defendant's airplane, either while it was turning onto the base leg of the landing, while on the base leg, or while turning onto the final approach, the defendant's airplane and the Navy airplane must have been facing each other. Whether, under those circumstances, the officers in charge of the defendant's airplane exercised the degree of care required of them raised a question of fact for the jury.
Since we are of the opinion that a question of fact was presented for determination by the jury as to the events which preceded the landing of the airplane, it is not necessary to discuss the alleged negligence of the stewardess as to the manner in which she evacuated the plaintiff. However, a majority of the members of the court believe that there was no question for the jury as to the conduct of the stewardess, and that she could not be criticized for choosing, in the crisis created by the crash, one means of egress over another, both or either of which are considered approved procedures by the defendant.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
ZIMMERMAN, TAFT, MATTHIAS, BELL and PECK, JJ., concur.
WEYGANDT, C.J., and HERBERT, J., dissent.
The statement of facts preceding the per curiam opinion very interestingly and very graphically recites the events which occurred prior to and at the time of the landing of the American Airlines plane on the day of the collision, but only the last two sentences in the third paragraph before the per curiam opinion relate the immediate circumstances of plaintiff's injury. The opinion also is devoted chiefly to the events prior to landing rather than to the events following the landing.
As to negligence on the part of the pilot or copilot of the American passenger plane, the writer will never be led to concede that any actionable negligence whatever on their part is shown in this record. The excerpts from the testimony quoted in the per curiam opinion indicate at best the frank acknowledgment of the American pilot that it is always the duty of the pilot of a plane to keep a lookout in all directions for possible other traffic but not that he failed in that duty. The terse consecutive messages from the tower to the American pilot quoted near the close of the statement of the case, "five seven two, cleared to land" and "pull up and go around that Navy aircraft just struck you," graphically demonstrate how the collision occurred, i.e., that the Navy plane came in behind and under the passenger plane as it was approaching the landing strip cleared to land, an obviously blind spot in the lead plane.
After the passenger plane had come to a stop the plaintiff was still whole and uninjured. The only negligence which in the opinion of the writer could have been the proximate cause of plaintiff's injury must have occurred after the landing had been completed and the plane had come to a stop.
I agree with the majority of the members of the court that there was no question for the jury as to the conduct of the stewardess and that she could not be criticized for choosing, in the crisis created by the crash, one means of egress over another, as stated in the per curiam opinion, and accordingly hold to the view that the defendant is entitled to judgment, particularly in view of the undisputed fact that the plaintiff alone injured her hands on the rope.
WEYGANDT, C.J., concurs in the foregoing dissenting opinion.