Robart v. Brehmer

DOOLING, J.

In an action for wrongful death the jury returned a verdict for defendants. The court granted a new trial on the ground of insufficiency of the evidence and defendants appeal.

The death was caused by a collision of two airplanes on the ground at a privately operated airfield. This field has an easterly and westerly runway about 3,000 feet long and 400 feet wide. The northerly 300-foot strip is used by planes taking off from the field and the southerly 100 feet by planes taxiing up the field to the beginning of the takeoff of the runway.

The decedent Robart was a flying instructor and was in a single motor plane with a pupil, Dr. Long. This plane was equipped with dual controls so that while Dr. Long was actually operating it the decedent could have taken over its operation at any moment. Dr. Long was practicing taking off and landing. On his last landing he decided that it might not be safe to take off immediately so he taxied to the westerly end of the runway, made a U-turn and started to taxi back to the head of the runway on the 100-foot strip set aside 'for that purpose. As he did so the defendant Brehmer was leaving the easterly end of the runway intending to take to the air. He was operating a two-motor plane. Brehmer proceeded for approximately 570 feet and had attained a speed of at least 40 miles per hour when his plane began to veer toward the left and thereafter proceeded in a parabolic are about 210

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feet leftward until it struck the plane operated by Dr. Long with the resultant death of Robart.

Appellants claim that there is no evidence which would support a finding that defendant Brehmer was negligent and that the evidence establishes the decedent’s contributory negligence as a matter of law.

Appellants point out that traveling at 40 miles per hour the plane operated by Brehmer would travel 210 feet in less than 4 seconds. Brehmer testified that as soon as his plane began to veer he tried to turn it back to its course by setting the tail rudder, that when that proved ineffective he eased back his right throttle, depressed his right brake and when none of these measures proved effective he pulled the stick in an attempt to take to the air. It is appellants’ position that Brehmer did all that could be expected of a person of ordinary prudence confronted by a sudden emergency with less than four seconds in which to act.