Newing v. Cheatham

on the second day after the crash in order to gather information for a report to the Mexican authorities. Rojo testified that he visually inspected the fuel tanks of the aircraft, which were carried on its wings, but saw no fuel. He also attempted, but without success, to drain fuel from the bottom of each tank by removing drain plugs.

Leon testified that he had inspected the aircraft’s fuel system, although he had not dismantled it, but had found no trace of fuel. Both men visually inspected the ground beneath the aircraft, but saw no indication of fuel spillage. They also attempted to measure the fuel in one of the wing tanks; Leon estimated the level of the fuel to be three-sixteenths of an inch. Rojo indicated that whatever fuel remained in the tanks was probably “unusable,” in the sense that it was not a sufficient quantity to reach the engine. Rojo also testified concerning the general structural condition of the aircraft, the appearance of the propeller and control surfaces, the upright position in which the plane had come to rest, and the general description of the accident site. All of these factors, he said, indicated that the crash had been caused by fuel exhaustion.

On cross-examination, however, Rojo conceded that the appearance and condition of the plane would have been the same if the crash had been caused by engine failure or some similar mechanical malfunction resulting in loss of power. He also indicated that since the aircraft had not been brought to a level position before he had attempted to drain fuel from the tanks, a usable amount of fuel might have remained within. He admitted that, there had been no very thorough investigation of other potential causes of the crash. Despite the foregoing, however, he remained of the opinion that the plane had crashed because it had run out of fuel.

Plaintiffs also called as an expert witness Michael Potter, an airline pilot who had logged some 1,200 hours of flight time in small aircraft, including 200 hours in a Cessna 172. Potter testified at length concerning the training received by student pilots with respect to fuel management and emergencies in flight. He stated that a prudent pilot maintains at the minimum a 45-minute reserve of fuel, and ordinarily flies high enough above surrounding terrain to permit his aircraft to glide to a safe landing in the event of a power failure. Potter also testified that, according to the operator’s manual, a Cessna 172 has sufficient fuel capacity to fly to 4.3 hours when operated at the usual power settings and with a “lean” fuel mixture. Thus, he said, the Cheatham plane, if operated in the usual manner with respect to power settings, fuel mixture, and altitude, should

the crash. The owner of a National City tavern testified that Newing, a man named “Harold,” and another man had drunk draft beer in his establishment for about an hour that morning, although he was unable to say how much beer they had consumed. A member of the rescue party testified that eight or nine empty beer cans had been found in the wreckage of the Cheatham plane. Evidence was also produced that the Mexican physicians who had performed autopsies on the bodies of the three men, had noted a strong odor of alcohol emanating from the remains of Cheatham and Bird, but not from Newing’s.

After the close of the evidence, the trial judge advised counsel that he would not instruct the jury on the defenses of assumption of risk and contributory negligence. He then granted plaintiffs’ motion for a directed verdict on the issue of liability, concluding that the elements of res ipsa loquitur had been established as a matter of law and that the inference of negligence arising from the doctrine had not been rebutted as required by Evidence Code section 646. The jury returned a verdict in favor of plaintiffs in the amount of $125,000. Judgment was entered accordingly. This appeal followed.

We address ourselves at once to defendant’s main contention that the trial court committed prejudicial error by directing a verdict on the issue of liability. Our consideration of this issue requires us to resolve two subordinate questions: First, whether, as the trial court concluded, the doctrine of res ipsa’ loquitur established Cheatham’s negligence as a matter of law; second, whether, as it also determined, the defenses of contributory negligence and assumption of risk as a matter of law were not applicable to the case.

We proceed to discuss these questions in the above order. We do so mindful of the familiar rules governing the granting of a motion for a directed verdict. Adverting to them in the context of a directed verdict in favor of the plaintiff, we had this to say in Walters v. Bank of America (1937) 9 Cal.2d 46 , 49 [ 69 P.2d 839 , 110 A.L.R. 1259 ]: “The trial court, in a proper case, may direct a verdict in favor of a party upon whom rests the burden of proof, in this case the plaintiff. Substantially the same rules apply to directed verdicts in favor of plaintiffs as apply to such verdicts in favor of defendants. [Citations.] A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of

such party, if such a verdict has been rendered. [Citations.] In passing on the propriety of the trial court’s action in directing a verdict, the doctrine of scintilla of evidence has been rejected in this state. [Citation.] A motion for a directed verdict may be granted upon the motion of the plaintiff, where, upon the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by the defendant. [Citations.]” (See also Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 , 745 [ 87 Cal.Rptr. 376 , 470 P.2d 360 ]; Parker v. James Granger, Inc. (1935) 4 Cal.2d 668 , 678-679 [ 52 P.2d 226 ], cert. den., 298 U.S. 644 [ 80 L.Ed. 1375 , 56 S.Ct. 958 ]; Estate of Lances (1932) 216 Cal. 397 , 400-401 [ 14 P.2d 768 ].)

It is settled law in this state that the “doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. [Citations.]” (Di Mare v. Cresci (1962) 58 Cal.2d 292 , 298-299 [ 23 Cal.Rptr. 772 , 373 P.2d 860 ].) According to the classic and oft-repeated statement, there are three conditions for the application of the doctrine: “ ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” ( Ybarra v. Spangard (1944) 25 Cal.2d 486 , 489 [ 154 P.2d 687 , 162 A.L.R. 1258 ]; see Wolfsmith v. Marsh (1959) 51 Cal.2d 832 , 835 [ 337 P.2d 70 ].) The existence of one or more of these conditions is usually a question of fact for the jury. (Danner v. Atkins (1956) 47 Cal.2d 327 , 331 [ 303 P.2d 724 ]; Seneris v. Haas (1955) 45 Cal.2d 811 , 826-827 [ 291 P.2d 915 , 53 A.L.R.2d 124 ]; BAJI (5th ed.) Nos. 4.00, 4.01.) In a proper case, however, they all may exist as a matter of law. (Di Mare v. Cresci, supra, 58 Cal.2d 292 , 300; Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784 , 794 [28 Cal.Rptr; 277]; BAJI (5th ed.) Nos. 4.02 (1973 pocket part), 4.03.) The question to be answered here is whether, as the trial judge determined, this is such a case.

Turning to consider the foregoing three conditions for the application of the doctrine, we direct our attention to the first condition, namely that the accident must be of a kind which ordinarily does not occur in the absence of negligence. In determining whether this condition is satisfied, a court may consider common knowledge, the testimony of expert witnesses, and the circumstances relating to the

particular accident at issue. (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436 , 446 [ 247 P.2d 344 ].) It need not be concluded that negligence is the only explanation of the accident, but merely the most probable one. (Di Mare v. Cresci, supra, 58 Cal.2d 292 , 298-299; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784 , 797.) We deal here in probabilities, not certainties.

Whether aircraft accidents are more often than not the result of negligence is a question that has vexed the courts of many jurisdictions for decades. (See cases collected in Annot., 6 A.L.R.2d 528 (1949), and Speiser, Res Ipsa Loquitur (1972) § 10:1 et seq.) According to Prosser, many early cases took the position that not enough was known about the hazards of flight to permit an inference of negligence to arise from the mere fact of a plane crash. (Prosser, Law of Torts (4th ed. 1971) p. 216.) Advances in the safety and frequency of air travel, however, have led to a trend in the opposite direction. Thus, while judicial opinion on the subject is by no means unanimous, res ipsa loquitur, over the years, has been applied to an increásing variety of aircraft mishaps. (See, e.g., Smith v. O’Donnell (1932) 215 Cal. 714 [ 12 P.2d 933 ]; Mittelman v. Seifert (1971) 17 Cal.App.3d 51 [ 94 Cal.Rptr. 654 ]; Nelson v. American Airlines, Inc. (1968) 263 Cal.App.2d 742 [ 70 Cal.Rptr. 33 ]; Roberts v. Trans World Airlines (1964) 225 Cal.App.2d 344 [ 37 Cal.Rptr. 291 ]; Abbott v. Page Airways, Inc. (1969) 23 N.Y.2d 502 [ 297 N.Y.S.2d 713 , 245 N.E.2d 388 , 35 A.L.R.3d 697 ]; Cox v. Northwest Airlines, Inc. (7th Cir. 1967) 379 F.2d 893 ; United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379 ; Southeastern Aviation, Inc. v. Hurd (1962) 209 Tenn. 639 [ 355 S.W.2d 436 ]; San Diego Gas & Electric Co. v. United States (9th Cir. 1949) 173 F.2d 92 ; Prosser, Law of Torts, supra, p. 216; 9 Cal.Jur.3d, Aviation, § 81, pp. 101-102.)

It is not fatal to the ruling here under review that the above cited cases dealt with the application of the doctrine of res ipsa loquitur as a question of fact to be determined by the jury whereas in the case at bench, it was applied by the trial judge to the air crash here involved as a matter of law. Essentially any differences in the manner of establishing the doctrine lies in the state of the evidence and the posture of the case. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436 , 440.) Although whether any one of the conditions for the application of the doctrine has been met may be usually a question of fact (Seneris v. Haas, supra, 45 Cal.2d 811 , 827), nevertheless under the particular circumstances of the case, any one of them may exist as a matter of law (Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784 , 794). Where no issue of

occurred. The short answer is that the record is devoid of evidence of such kind of mechanical failure. Furthermore, if such evidence had been produced, it would have no relevance to the second condition for the application of res ipsa loquitur, namely whether the airplane was within the exclusive control of Cheatham. With respect to the operation and maintenance of the aircraft, the control exercised by Cheatham as owner-pilot was complete. There thus can be no doubt that this element of the doctrine exists as a matter of law.

The third of the traditional conditions for the application of res ipsa loquitur is that the accident must not have been caused by any voluntary action or contribution on the part of the plaintiff. The purpose of this requirement, like that of control by the defendant is to establish that the defendant is the one probably responsible for the accident. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436 , 444.) The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence. (Shahinian v. McCormick (1963) 59 Cal.2d 554 , 560 [ 30 Cal.Rptr. 521 , 381 P.2d 377 ].)

Defendant contends that the trial court confused the existence of this third condition with the availability of the defenses of assumption of risk and contributory negligence. It is true that these are separate questions, since the burden of proof with respect to the first rests on the plaintiff as part of his general obligation to establish the defendant’s negligence, while the burden of proof as to the latter rests on the defendant. (Shahinian v. McCormick, supra, 59 Cal.2d 554 , 560; Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436 , 444.) Quite apart from whether or not the trial court’s remarks indicate that it confused the above two questions, the uncontradicted evidence shows that the body of plaintiffs’ decedent was found by the rescue party in one of the rear seats of the four-seater aircraft. From that position, it is difficult to imagine how he could have interfered physically with the operation of the aircraft in any way. (Cf. Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266 , 271 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ].) Moreover, as noted above, there is no dispute that Cheatham was the pilot in command of the aircraft, and it must be presumed that he made all decisions concerning its operation and preparation for flight. There is no basis for supposing that Newing exerted any influence with respect to the making of these decisions. Thus the evidence concerning the basic operation of the aircraft is such as to conclusively eliminate Newing’s conduct as a potential cause of the accident.

The proposed analogy, however, is inapposite. The evidence on the point shows only that Cheatham, Newing, and Bird drank some beer. It does not disclose how much they drank, or how it affected them. There is no indication that Cheatham became so obviously intoxicated as to put plaintiffs’ decedent on notice as to his inability to operate the plane safely. (See Wagner v. Osborn (1964) 225 Cal.App.2d 36 , 47-50 [ 37 Cal.Rptr. 27 ]; Enos v. Montoya (1958) 158 Cal.App.2d 394 , 401 [ 322 P.2d 472 ]; Harlow v. Van Dusen (1955) 137 Cal.App.2d 547 , 551 [ 290 P.2d 911 ].) In Mittelman v. Seifert, supra, 17 Cal.App.3d 51 , 69, 79, on the other hand, where there was significant evidence of pilot incapacity due to illness, fatigue, and consumption of alcohol and pharmaceuticals, the trial judge’s refusal to instruct the jury on contributory negligence and assumption of risk was upheld on appeal. After having carefully reviewed the record, we fail to find any evidence sufficient to raise an issue of fact in respect to either of these two affirmative defenses. We are satisfied that the trial court properly concluded that plaintiffs’ decedent as a matter of law neither was himself negligent nor assumed the risk of Cheatham’s allegedly alcoholic, condition. We conclude that the trial court properly determined that Cheatham was liable for Newing’s death as a matter of law and properly granted plaintiffs’ motion for a directed verdict on the issue of liability.

We briefly dispose of defendant’s remaining contention, which is that the trial court erred in preventing the witness Rudich from expressing an opinion regarding the adequacy of the investigation conducted by Rojo and the reliability of his conclusion as to the cause of the accident. If any error was committed in this respect, it was not prejudicial, since the clear implication of that portion of Rudich’s testimony which was admitted was that Rojo’s investigation and opinion were defective. This, however, does nothing to rebut the clear inference of negligence which, in the circumstances of this case, arose from the fact of the crash itself.

The judgment is affirmed.

Wright, C. J., McComb, J., Tobriner, J., Mosk, J., Clark, J., and Richardson, J., concurred.