DocketNumber: 546
Citation Numbers: 406 P.2d 189
Judges: Dimond, Nesbett, Rabino, Rabinowitz, Witz
Filed Date: 10/8/1965
Status: Precedential
Modified Date: 8/7/2023
Appellee’s husband, A. O. Rogers, was killed in the crash of an airplane he was flying. The appellant was the only passenger, and was injured. He brought this action for damages for negligent maintenance and operation of the aircraft against appellee, as executrix of her husband’s estate. The jury found in appellee’s favor, and appellant has brought this appeal.
Appellant’s principal contentions are that the trial court erred in permitting appel-lee’s witness, Ward Gay, to testify as an expert on the cause of the airplane’s crash, and in allowing Gay’s testimony to be elicited without a hypothetical question having been propounded to him.
The aircraft involved was a tandem seat two place Aeronca Champion. At the time of the crash the pilot A. O. Rogers occupied the front seat and appellant occupied the rear seat. The airplane had dual controls — ■
The plane had taken off from a lake. When it was about ISO to 300 feet in the air the engine sputtered for a moment and then resumed normal operation. Almost immediately after that, the plane made a sharp left turn in what appeared to witnesses to be an attempt to get back to the lake, went into a spin, and crashed nose down in the timber beyond the edge of the lake. At the time the aircraft went into a spin the engine had stopped. There was a conflict in the evidence as to whether the engine stopped running immediately before, at the same time, or immediately after the aircraft made the left turn.
The witness, Ward Gay, testified that in his opinion the crash was caused by the passenger, the appellant, pushing or stamping down on the left rudder pedal in the rear seat, which threw the airplane into a spin. The witness based his opinion on his observation of the scene of the crash and the wreckage of the aircraft, on his knowledge of how the accident happened and all the circumstances surrounding it, and on his personal experience as a pilot.
Gay had not personally observed the aircraft take off from the lake, turn left, and go into a spin; but stated that he had learned of this from what he had heard from other persons. The appellant contends that Gay’s opinion was objectionable, because all the relevant data upon which the opinion was based was not within Gay’s personal knowledge and had not been stated to him in the form of a hypothetical question.
The general rule is that when the facts upon which an opinion is based are not within the expert witness’s own personal knowledge, such facts must have been supplied to the jury by other evidence and then presented to the witness hypothetically before his opinion may be received. The reason for the rule is that the witness’s conclusion depends for its validity upon facts considered by him; and if the facts are not made to accompany the conclusion, then the jury would be asked to accept as evidence a conclusion which might not be supported by any evidence produced at the trial and which, therefore, the jury would have no basis for finding to be true.
The rule has no application when the reason for its existence is lacking.
Gay’s conclusion that appellant had pushed down on the left rudder was not based solely on the fact that the plane had turned left and gone into a spin. This conclusion was also based on Gay’s own personal experience as a game guide and pilot, where on at least two occasions a hunter riding in his airplane had gotten excited and shoved his foot down on the rudder pedal. A further basis for Gay’s conclusion was his personal observation that the right rudder pedal in the pilot’s seat was bent. He stated that this indicated to him that appellant had stamped down on the left rudder in the rear, and that the pilot in trying to overcome the effect of the left rudder had pushed down on the right front rudder pedal with such force as to bend that portion of the pedal that one places his foot upon.
We believe that the witness’s opinion was a reasoned conclusion based on facts perceived and made known to him, and was not merely a fanciful notion conjured from unreality. Whether or not the opinion was a conjecture in the sense of being formed upon insufficient evidence, or was a reasonably accurate conclusion, was for the jury to determine. It was the jury’s task to determine the proximate cause of the accident. The question faced by the trial judge was whether the jury, in making that determination, could receive appreciable assistance from the opinion of the witness, Gay.
We are unable to say that the judge was clearly mistaken — that he had abused his discretion in deciding that Gay’s knowledge and experience were such that his opinion as to the cause of the accident would be of appreciable help to the jury in deciding that issue.
The record bears out the judge’s decision that Gay’s opinion as to the cause of the crash was within the scope of Gay’s special knowledge, skill and experience. It does not detract from the soundness of the judge’s decision that Gay had never been employed commercially or officially to investigate airplane crashes or that it was not shown that he was recognized by others as an expert on such matters. The true criterion in determining whether one qualifies as an expert witness and whether his opinion is admissible is not whether he employs his knowledge and skill professionally or commercially. The true criterion is whether the jury can receive appreciable help from this particular person on this particular subject.
Appellant’s next point is that the court erred in refusing to give the jury an instruction making the rule of res ipsa loqui-tur available to him.
Res ipsa loquitur means “the thing speaks for itself”.
The proof by a plaintiff of specific acts of negligence on the defendant’s part does not necessarily mean that the doctrine of res ipsa loquitur will not be available to the plaintiff. If such proof does not furnish a complete explanation of the accident, there may still be room for an inference of negligence arising from the happening of the accident.
The rule of res ipsa is unnecessary in this case. There was expert testimony to the effect that if a pilot attempts to make a 180 degree turn after the engine of his plane fails, it is most likely that the plane will go into a spin. What the pilot should do in those circumstances is to glide straight ahead and make an emergency or crash landing on the ground. The appellant, who was a passenger in the plane that crashed, testified that when the engine quit Rogers banked the plane to the left and tried to bring it back to the lake, and that as the airplane went into a turn the nose fell and the plane went into a spin.
If the jury believed appellant’s testimony, they could find that Rogers had not acted as a reasonably prudent pilot would have acted under the same circumstances, and that he was therefore negligent; and that his negligence was the proximate cause of the accident which caused appellant’s injuries. When the happening of the accident is as fully explained as it is here, it would be pointless and confusing to the jury to tell them that they may reach a conclusion that the accident must have been caused by the negligence of the defendant from the mere happening of the accident.
Appellant’s next contention is that the court erred in not granting appellant’s motion for judgment notwithstanding the verdict.
There was some evidence tending to show that faulty maintenance of the airplane’s engine caused it to fail during flight. There was evidence, which we have previously referred to, that Rogers was negligent in attempting a sharp left turn after the engine had stopped, instead of flying straight ahead and landing on the ground.
But there was more to the case than evidence of negligence on Rogers’ part. The expert witness, Ward Gay, testified that in his opinion appellant had pushed on the left rudder pedal, throwing the plane into a sharp left turn and a spin. If this testimony were believed, the proximate cause of the crash would have been appellant’s own fault, and not that of Rogers.
Appellant argues, however, that Gay’s testimony was not worthy of belief. Gay reached the conclusion he did mainly from his observation that the right front rudder pedal was bent, and his opinion that this had been caused by the pilot putting pressure on the pedal in an attempt to overcome the effect of appellant placing pressure on the left rear rudder pedal. Appellant contends that the worth of Gay’s opinion was obliterated when, in a courtroom demonstration where the fuselage of a similar aircraft was used, Gay was unable to bend the right front rudder pedal by applying pressure with his right leg and foot.
The strength and the effect of Gay’s opinion as to the cause of the accident might have been lessened by the courtroom demonstration. But we do not believe that the value of his opinion was so diminished that the judge was required to disregard it and not let the jury decide the case. The jury reasonably could have believed that there was a difference in the manner and the amount of force applied to the rudder pedal in a situation where a pilot was literally fighting for his life and in a situation where a witness was engaged in a courtroom demonstration. The jury also could have taken into consideration the fact that no other reasonable explanation of the bent pedal was suggested by the evidence at the trial. We believe that Gay’s testimony was such that reasonable men could justifiably have different views as to whether the appellant himself had proximately caused the crash of the airplane.
What we have just said also disposes of appellant’s contention that the court erred in allowing the jury to consider whether appellant was contributorily negligent. The testimony of Ward Gay constituted evidence of negligence on the part of appellant, and it was therefore proper to submit that question to the jury to decide.
Appellant contends that the court damaged his case by suggesting to appel-lee’s counsel, after appellant had asked his witness a hypothetical question and had received an answer, that had appellee objected to the question the objection would have been sustained. The incident referred to took place out of the jury’s presence. We are unable to see how any prejudice resulted to appellant.
Nor can we see any merit to appellant’s point that in returning a verdict for appel-lee, the jury disregarded or did not properly consider certain instructions relating to presumptions and burden of proof. Appellant’s argument on this point appears to be nothing more than a reiteration of his contention that there was no probative evidence of contributory negligence on appellant’s part. We have already held that there was.
The judgment is affirmed.
. Gilbert v. Gulf Oil Corp., 175 F.2d 705 (4th Cir.1949). See Zerbinos v. Lewis, 394 P.2d 8S6 (Alaska 1964) ; 2 Wigmore, Evidence §§ 672-679 (3d ed. 1940); McCormick, Evidence § 15, at 32 (1954); Annot, 38 A.L.R.2d 13, 45-46 (1954),
. Xenakis v. Garrett Freight Lines, Inc., 1 Utah 2d 299, 265 P.2d 1007, 1010 (1954); Langenfelder v. Thompson, 179 Md. 502, 20 A.2d 491, 494, 136 A.L.R. 960 (1941); Independent School Dist. No. 35 v. A. Hedenberg & Co., 214 Minn. 82, 7 N.W.2d 511, 520 (1943).
. Meyst v. East Fifth Avenue Service, Inc., Opinion No. 288, 401 P.2d 430, 438 (Alaska 1965); Oxenberg v. State, 362 P.2d 893, 900 (Alaska), cert. denied, 368 U.S. 56, 82 S.Ct. 189, 7 L.Ed.2d 128 (1961).
. See Sanuita v. Hedberg, Opinion No. 296, 404 P.2d 647 (Alaska 1965).
. Meyst v. East Fifth Avenue Service, Inc., Opinion No. 288, 401 P.2d 430, 438 (Alaska 1965); Oxenberg v. State, 362 P.2d 893, 900 (Alaska), cert. denied, 368 U.S. 56, 82 S.Ct. 189, 7 L.Ed.2d 128 (1961); 7 Wigmore, Evidence § 1923, at 21 (3d ed. 1940).
. Black, Law Dictionary, at 1470 (4th eel. 1951).
. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 191 (1949); Prosser, Torts § 42, at 202 (2cl ed. 1955).
. Denny v. Warren, 398 P.2d 123 (Or.1964).
. Lobel v. American Airlines, Inc., 192 F.2d 217, 219-220 (2d Cir.1951), cert. denied, 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703 (1952); Schneider v. United States, 188 F.Supp. 911, 914 (E.D.N.Y. 1960); Case v. Peterson, 17 Wash.2d 523, 136 P.2d 192, 195 (1943). Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 214 (1949). See Furness, Withy & Co. v. Carter, 281 F.2d 264, 265, 1 A.L.R.2d 636 (9th Cir.1960).
. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 212-213 (1949); Evans v. Buchner, 386 P.2d 836, 837 (Alaska 1963); Schenderline v. Robertson, 394 P.2d 395, 396 (Alaska 1964). See Citrola v. Eastern Air Lines, Inc., 264 F.2d 815, 818 (2d Cir.1959).
. Citrola v. Eastern Air Lines, Inc., 264 F.2d 815, 818 (2d Cir.1959); Patrick v. Sedwick, 391 P.2d 453, 456 (Alaska 1964) ; Schenderline v. Robertson, 394 P.2d 395, 396 (Alaska 1964); Evans v. Buchner, 386 P.2d 836, 837 (Alaska 1963).
. McCoy v. Alaska Brick Co., 389 P.2d 1009, 1010 (Alaska 1964).
. Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964).