(dissenting). I dissent on the ground that the issues of fact were properly determined by the jury. The meaning and effect of the regulations was a mixed question of fact and law because of the usages and practices involved. Moreover, both sides tried the case on that theory, and there was no exception to the court’s charge in submitting those issues to the jury. The jury could properly find that defendant’s acts and omissions were “ wilful misconduct ” within the meaning of the Warsaw Convention, it being suEcient that they find that defendant’s acts or omissions were deliberately done or omitted as acts or omissions, in violation of the regulated standards of care. (Shaw-cross and Beaumont on Air Law [2d ed.], pp. 34A-347, and authorities cited.) On the matter of proximate cause it was quite reasonable for the jury to find that the pilot’s substandard familiarity with an instrument landing on the field at Stephen-ville involved of necessity a relatively substandard familiarity with the terrain, resulting in the pilot’s ignorance of the hill which, on take-off, the plane struck. This, the jury could have *113found was a proximate cause of the accident. It should be obvious too that with respect to air accidents, because of the mysteries in which the fatal and more serious accidents become shrouded, a liberal approach in finding proximate cause from any kind of misconduct which may lead to multiple fatalities is socially justified, if not required. What may be required as evidence of proximate cause in a trolley car accident would not be a relevant standard in an accident involving- a modern transport plane, or the jet liner now at the threshold of air transportation. The risks of air transportation are great and are assumed by the passenger; but he should have the right to rely on the carrier’s adherence to officially required standard of care. (See Shaw-cross and Beaumont on Air Law [2d ed.], pp. 316-319.)
The judgment should be affirmed.
Peck, P. J., and Callahan, J., concur with Cohn, J.; Breitel, J., dissents and votes to affirm, in opinion; Dore, J., dissents and votes to affirm on the ground that the claimed ‘ ‘ willful misconduct ” was an issue of fact for the jury, as well as the negligence.
Judgment modified by reducing the amount thereof to $8,300 and judgment is directed to be entered in plaintiff’s favor in the said sum of $8,300, without costs.
Settle order on notice.