Hargett v. Gastonia Air Service, Inc. , 23 N.C. App. 636 ( 1974 )

209 S.E.2d 518 (1974) 23 N.C. App. 636

Mary McLemore HARGETT, Administratrix of the Estate of William H. Hargett
v.
GASTONIA AIR SERVICE, INC. and Cocker Machine & Foundry Company, Inc.
Mary Jane Spivey LEWIS, Administratrix of the Estate of Wayne Harrison Lewis
v.
GASTONIA AIR SERVICE, INC. and Cocker Machine & Foundry Company, Inc.

No. 7420SC739.

Court of Appeals of North Carolina.

November 20, 1974. Certiorari Denied January 7, 1975.

Griffin & Caldwell by Thomas J. Caldwell, Monroe, for plaintiff appellant Mary Jane Spivey Lewis.

Thomas & Harrington by Larry E. Harrington, Monroe, for plaintiff appellant Mary McLemore Hargett.

Carpenter, Golding, Crews & Meekins by James P. Crews and Rodney Dean, Charlotte, for defendant appellee Cocker Machine & Foundry Company, Inc.

Certiorari Denied by Supreme Court January 7, 1975.

BALEY, Judge.

The only question necessary for decision on this appeal is whether the motion of defendant Cocker Foundry for judgment notwithstanding the verdiit was properly granted by the trial court.

The same standards which are applied to a motion for directed verdict are applicable to a motion for judgment notwithstanding the verdict. N.C.R.Civ.P. 50(b)(1). Prior denial of a motion for directed verdict is not a bar to the motion for judgment notwithstanding the verdict. Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441. On a motion for directed verdict by the defendant the court must consider the evidence in the light most favorable to the plaintiffs and may grant such motion only if, as a matter of law, the evidence is insufficient to support a verdict for plaintiffs. Investment Properties v. Allen, supra; Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47. Using this yardstick in evaluating the evidence for plaintiffs, we conclude that the order granting judgment for defendant Cocker Foundry notwithstanding the verdict is correct and must be affirmed.

The evidence when considered in its most favorable light for plaintiffs shows that Landman, who arranged the charter flight with Gastonia Air Service, had some prior flight instruction and in this case had obtained information from the air weather service that "the weather was not forecasted to be suitable for VFR flight in the vicinity of his destination." The pilot Morgan was made aware of this weather information and prior to departure had secured much more detailed information from the weather service. Landman knew that the aircraft chosen for the flight was usually flown VFR but was actually equipped for flying under both visual flight rules (VFR) and instrument flight rules (IFR). The pilot Morgan was a commercial pilot with an instrument rating which qualified him to fly both VFR and IFR. During the flight Morgan obtained additional weather information from Raleigh and Roanoke flight service stations covering the weather conditions at his destination at White Sulphur Springs. There is testimony concerning fog and heavy moisture in the mountain area about the time of the crash, but no witnesses saw the immediate area when the crash occurred. There is no direct evidence that the plane was in clouds, fog, or any precipitation or that such weather conditions caused the crash. One witness testified that he heard the plane before the crash, and the engine cut off just a few seconds before it hit. The investigation by the Federal Aviation Administration revealed no cause for the accident.

In order to recover from the defendant in this action the plaintiffs must show negligence on the part of Landman which was a proximate cause of the death of their intestates. The evidence does not disclose what caused the accident which resulted in their deaths. In the light of an omniscient hindsight, this flight should not have been undertaken as there was a crash in which all occupants of the plane were killed. But whether the condition of the weather and the type of aircraft chosen for the flight contributed to the fatal crash is left to conjecture. Pilot error in the operation of the aircraft, mechanical defects, engine malfunction, or other reasons which lie in the realm of speculation can be projected as possible causes, but, absent some evidence which would support a finding that the conduct of Landman in failing to cancel the flight had some reasonable causal connection with the crash, the plaintiffs have not shown actionable negligence on the part of Landman or Cocker Foundry.

"Any recovery for wrongful death must be based on actionable negligence under the general rules of tort liability. ``In a case involving an airplane crash the doctrine of res ipsa loquitur does not apply, "it being common knowledge that airplanes do fall without fault of the pilot." Furthermore, there must be a causal connection between the negligence complained of and the injury inflicted.' Jackson v. Stancil, 253 N.C. 291, 116 S.E.2d 817; Bruce v. O'Neal Flying Service, 231 N.C. 181, 56 S.E.2d 560, 12 A.L. R.2d 647; Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442."

Mann v. Henderson, 261 N.C. 338, 341, 134 S.E.2d 626, 629.

The judgment of the trial court is affirmed.

Affirmed.

MORRIS and HEDRICK, JJ., concur.