BARNHILL, J., dissenting. Action for wrongful injury and death of plaintiff's intestate. Nonsuit on demurrer to the evidence.
Pertinent evidence of the plaintiff may be summarized as follows: W. S. O'Neal, at that time president of the defendant corporation and manager of its local airport where the alleged injury was inflicted and death occurred, staged in behalf of the defendant an air show to dedicate its new airport and demonstrate airplane maneuvers, to which the public was invited, and around 8,000 persons attended.
O'Neal was president of the defendant corporation and manager of its airport and in charge of the show, himself participating in the maneuvers. The flying staff consisted of O'Neal, H. L. Bobbitt and Mack Bass.
The operation being conducted was the demonstration of "precision spins" which O'Neal testified was a normal movement performed in an airplane and, when properly done, was safe and not dangerous. It is *Page 183 described as a controlled movement in which the pilot causes the plane to descend in an oscillating, spiral movement from which the pilot, never losing control, may "level off" or recover when he desired.
Before the flight began it was planned and agreed that the pilots above mentioned were to ascend to 2,000 feet and upon reaching that height to drop into the spiral movement, making from three to five turns, as appeared to the individual pilot to be safe, and as necessity required.
Just before the ascent plaintiff's intestate, who had sometimes given instruction in flying at the airport, but who was not then in the defendant's employment, approached the pilot Bobbitt, saying, "Bobbitt, how would you like to have a passenger?" And Bobbitt invited him to "come on." This was in the presence of Manager O'Neal (who so testified). He further testified that it was a matter "up to the pilot." Bruce entered the plane, taking the rear seat, and the planes took off as planned in a V formation, Bobbitt leading in the front plane at the apex of the V. When Bobbitt's plane reached an altitude of 1,800 feet, instead of the 2,000 feet as planned, he started in his spin, or spiral movement, made five and one-half turns, apparently made no effort to recover and the plane struck the ground. Both Bruce and Bobbitt were instantly killed.
Witness O'Neal, qualifying as an expert, testified that Bobbitt should have completely recovered to normal straight flight at least 500 feet from the ground and that it was unsafe to continue the spiral movement any closer. O'Neal, on seeing the airplane strike, throttled his engine hard and, grading his turns, went down and landed. O'Neal gave his expert opinion that the crash was due to the fact that the pilot Bobbitt, in demonstrating the spin, "overdid it — tried to make it too good" and went too low; that if he had finished in three spins he would still have been 1,000 or 1,200 feet above ground; starting to spin at 1,800 feet he could not make more than three turns safely. The pilot Bobbitt could tell by his altimeter the height of the plane. Bobbitt was 50 or 100 feet from the ground when he went into the fourth or fifth spin. Witness further stated that he was flying for the O'Neal Flying Service.
On the cross-examination this witness stated that he did not know what went on in the cockpit of the plane, could not see and could only assume. He described the plane as an Aeronca Tandem Model, 7AC, demonstrating with a model the maneuver of spinning and declaring it to be a safe maneuver when properly executed. He stated that Mr. Bobbitt was in the instructor's seat, the front seat, and Mr. Bruce was a passenger sitting in the rear seat. The plane had dual controls — two pairs of controls — so that either person had a means of controlling its flight. The controls, however, were coupled together so that a movement of one device caused a corresponding simultaneous movement in the similar member of the other — the control sticks and pedals executing exactly the same movement. *Page 184
On re-direct examination the witness stated Mr. Bobbitt was in the front seat and doing the piloting.
R. H. Edwards, who qualified as an expert, stated that he was chief pilot of Serv-Air, Inc., which operates an airport near Raleigh and was present and witnessed the fatal flight. He testified that the spiral maneuver referred to was safe when properly performed and that an Aeronca plane was suitable to use in that maneuver; that if the movement was executed from an altitude of 1,800 feet the observed number of turns could not be made with safety. From that altitude, he testified, only two or three turns could have been made with safety. He testified on cross-examination that either of the persons in the plane could have controlled its movements — but if the pilot in front had set his stick and was pushing on the pedals controlling the spin, the man in the rear seat would have to overcome his force.
B. W. Stevens, a news photographer, also a pilot, testified that he saw the three planes reach their altitude and start spinning in successive order. The lead plane was practically on the ground when the third plane began spinning. It had made five and one-half turns when it hit the ground. Photographs taken by this witness were used in illustration. The witness described the motion of the plane ill making the spiral as a leaf falling of its own weight.
Other evidence was introduced on the issue of damages and matters not concerned with the subject of this decision.
At the conclusion of plaintiff's evidence, the defendant, offering none, demurred and moved for judgment of nonsuit. The motion was allowed, and plaintiff excepted and appealed. In this action for negligent injury resulting in death of plaintiff's intestate, nonsuit was allowed on demurrer to the plaintiff's evidence, and the defendant was, therefore, not under the necessity of offering any. Decision requires consideration only of the nonsuit, which gave plaintiff's case the coup de grace. The trial judge gave no intimation as to the basis of his ruling, and it is, therefore, referable to any reason which may justify it. The defendant-appellee suggests several, any one of which, it is contended, will support the judgment: That the evidence contains no inference of negligence on the part of the pilot in charge; that the pilot, Bobbitt, was not at the time, and for the purpose undertaken, an employee or agent of the defendant, so as to make the latter liable on the principle respondeat superior; that the plaintiff is barred from recovery by his assumption of the risk in participating in an *Page 185 obviously dangerous maneuver; that he was contributorily negligent; and that he invited or willingly suffered the injury resulting in death, ("volenti non fit injuria").
We consider these questions, perhaps not in order, but as they are touched by the evidence.
The evidence tends to show that Bobbitt was an employee of the defendant and as such was given complete charge of the plane which operated in the air show, or demonstration. O'Neal, the president of the defendant company and the manager of this enterprise, testified that Bobbitt was selected by the defendant for this purpose. This is sufficient to raise an inference of agency. Mecham on Agency, (2d Ed.), sec. 1859; Irwin v. Judge, 81 Conn. 412; Hill v. Morey, 26 Vt. 178; 57 C.J.S., Master Servant, sec. 563.
The circumstances under which Bruce entered the plane also raise the inference that the pilot was authorized to take him up and owed to him the duty, imputed to the defendant, to refrain from negligent injury. The invitation was extended to Bruce by Bobbitt within the hearing of O'Neal and its significance was at once apparent. It did not require the spoken word, merely his silent acquiescence to give authority. Wright v. Wright, 229 N.C. 503, 506, 50 S.E.2d 540; Russell v. Cutshall, 223 N.C. 353,26 S.E.2d 866; Hayes v. Creamery, 195 N.C. 113, 141 S.E. 340; Fry v. Utilities Co., 183 N.C. 281, 111 S.E. 354; Schwartz, Trial of Automobile Cases, sec. 373.
The measure of defendant's duty is that of ordinary care. Wright v. Wright, supra. The above citations are concerned with automobile law but Agency, the measure of negligence, and other principles discussed are equally applicable to the law of aviation. Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 425, 23 N.C.C.A. (N.S.) 384; Bird v. Louer, 272 Ill. App. 522; Rogina v. Midwest Flying Service,325 Ill. App. 588, 60 N.E.2d 633; Interstate Airlines v. Arnold,127 Neb. 665, 256 N.W. 513; Apartan Aircraft Co. v. Jamison,181 Okla. 645, 85 P.2d 1096; 2 C.J.S., Aerial Navigation, sec. 19, p. 907.
The legal sufficiency of the evidence to go to the jury is more strongly challenged in two respects: It is contended that the testimony of expert witnesses concerning the crash of the plane and its cause is merely guesswork, without probative force, and does not rise to the dignity of evidence; and that, at any rate, there is no evidence to determine which of the occupants of the plane — whether the pilot put in official charge, or Bruce, who entered as a passenger — had control at the time of the spinning maneuver which resulted in the crash and death of Bruce.
While the cross-examination elicited answers from the witnesses giving expert opinions as to the operational failure led to answers which appellee construes as withdrawing their statements, it may be conceded there were *Page 186 some assumptions, that part of this evidence was directed to the circumstance that they could not, and did not, see what took place inside the cockpit, and had made some assumptions as to who was in charge. We cannot find that in any place they withdrew their statements as to the fault in conducting the maneuver, regardless of whether Bobbitt or Bruce was at the controls.
O'Neal, the president of the flying service and manager of the demonstration, after testifying to the agreement which was made between the three pilots, himself, Bobbitt and Bass, made for reasons of safety, testified that flying in V formation he watched every movement of Bobbitt's plane from its top altitude down to the ground, and counted the turns; and testified in this respect as follows: "At a height of 1,800 feet Mr. Bobbitt, being No. 1, he started on his spin. I noticed him when he started to spin, and he spun and spun, and it appeared to me that he went into a tight spiral, that is a maneuver that you wouldn't know from a spin, hardly, in seeing it from the ground; You would think it was the same thing. It appeared to me that he went into a tight spiral, and he made five and a half turns — I counted them — then he struck the ground . . . straight in, nose down . . . still curving," . . . and apparently "made no effort whatever to recover." For the sake of safety "he should have completely recovered and gone into a normal, straight flight at least 500 feet above the ground."
In stating that he had 15 years' experience in operating airplanes and observing their operation, he testified, "My opinion was that the pilot demonstrating the spin just overdid it a little bit too much . . . apparently he tried to make it too good. He just went too low." He further testified that from the elevation at which Bobbitt began the spin only about three turns could have been made with safety and that the pilot was not more than 50 or 100 feet from the ground when he went into the fourth or fifth spin.
Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442, has no application whatever to the facts of this case. In that case neither the pilot nor the passenger was killed, and both testified. The plaintiff Smith testified "that the plane went into a spin and crashed and I don't know why." The pilot Nelson testified, "I don't know just why the plane crashed. It just came down in a spin with the nose to the ground."
It will be seen from this short per curiam opinion that the plaintiff really based his case on the fact that the pilot was unlicensed and, of course, failed to show this as a proximate cause of the injury.
In the instant case the spin was not accidental; it was a planned maneuver and there is evidence to be submitted to the jury as to the negligence of the operation which caused the crash. *Page 187
That question, that is, whether Bobbitt was at the controls and responsible for the movements of the plane, is not without supporting evidence. Permissible inference that Bobbitt was at the controls at the time may be made from the attending circumstances although no eye saw what took place in the cockpit. Bobbitt was put in official charge of the plane and its operation, in the forward seat of the cockpit. Bruce entered as a passenger. It is hardly conceivable that their relative positions as passenger and pilot changed during the maneuver since Bobbitt was selected for that purpose and the responsibility placed upon him. There is a strong inference that he continued the operation of the plane during maneuvers. It is in evidence that to cause the oscillating or circular movement of the plane the pilot would have to pull the stick back to the seat, or almost to the seat, and push with extended leg, either the right pedal or the left pedal, according as a right turn or a left turn was desired; and that in this position the person in the rear seat, if minded to take control, could not wrest control from the man in front, except with difficulty, and one witness stated, perhaps not at all.
The rule requires us to consider the evidence and all its inferences in the most favorable light for the plaintiff. Mere imaginative or speculative possibility as to what may have occurred is not sufficient to overcome the inferences raised by this evidence, or the permissible inference that Bobbitt was in control.
Under the evidence the plea of assumption of risk is not tenable. We cannot assume, against the evidence before us, that the enterprise on which Bruce accompanied the pilot Bobbitt, even if known to him in advance, (and of this there is no evidence), involved such an obvious or imminent danger to life and limb as to require an ordinarily prudent man to refrain from participating in it. In so far as the flight itself is concerned, it is recognized as a convenient mode of travel, regularly and extensively used, and reasonably safe. The evidence, without any witness stating contra, tends to show that the plane in which the demonstration took place was fit and suitable for the purpose; and that the maneuver itself was normal and safe in the hands of a careful pilot.
The contention that plaintiff is barred from recovery because his intestate negligently contributed to his own death cannot be maintained here as a matter of law on the present state of the evidence. If addressed to the suggestion that Bruce may have been in control of the plane at the time of his injury, there is no evidence of that fact. If advanced on the theory that he voluntarily participated in the maneuver, as suggested, being executed at the time of his injury and death, as we have already stated in dealing with the question of assumption of risk, the evidence tends to show that the operation under way at the time was not of a *Page 188 character which would attribute negligence to a reasonably prudent man in engaging in it.
The pleas of assumption of risk and contributory negligence are both affirmative and require a showing on the part of the defendant to be considered at all; and to prevail as a matter of law, as to either, it must plainly appear from the evidence that a reasonable mind could draw no other inference.
As we have stated, assumption of risk and contributory negligence are affirmative pleas and ordinarily must be left to the jury. We find no evidence in support of either plea that would justify the court in taking it from the jury.
Our task as an Appellate Court is merely to judge of the probative value of the evidence and not its weight; to say whether there is a legal sufficiency in its inferences to be submitted to the jury. Applying these principles of law, we conclude that there was error in withdrawing the evidence from the jury, and the order of nonsuit is, therefore,
Reversed.