Dissenting Opinion
Crumlish, J.,February, 1949. — I cannot bring myself to agree with my brethren.
The main question is whether or not the motion for judgment n. o. v. should be granted. I shall, however, touch upon certain reasons which I think could support the granting of the motion for a new trial because of the close relationship between them and my reasons for voting to grant the motion for judgment n. o. v.
New Trial
1. I think it was error to admit in evidence, over objections:
A. The conversation which took place between Fischer, defendant’s decedent, and W. A. Hughes, plaintiff’s witness, shortly after the former had pur*32chased the Kinner Fleet airplane. The witness Hughes testified that Fischer said he had “bought the plane to see if he could learn to do aerobatics.” This testimony was too remote and irrelevant.
B. The Federal regulations. The flight was intrastate and the applicable statute was The Aeronautical Code of May 25,1933, P. L. 1001, sec. 406,2 PS §1472. The Federal regulations, therefore, were irrelevant.
C. Testimony regarding Fischer’s misconduct on previous occasions. For example, the witness Hughes testified that Fischer inexpertly performed slow rolls and snap rolls, cut corners, cut off other ships, landed inside the slip ahead of him, and ignored the traffic pattern; plaintiff’s witness Drohan testified that he had seen Fischer “. . . enter the pattern, many a time, the wrong way. I have seen him disregard other students who were flying solo in the pattern, or myself, in the pattern, come in, make sharp turns into the pattern and cut us all off, come in and land, which made it very dangerous for students flying around there alone.” Testimony of this type is indicative not merely of style, but rather of specific acts of misconduct. “It is an established rule applicable alike to civil and criminal inquiries that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person.” See Baker v. Irish, 172 Pa. 528, 532 (1896), Veit v. Class and Nachod Brewing Company, 216 Pa. 29, 33 (1906), Wyatt v. Russell, 308 Pa. 366, 369 (1932), Artman v. Stanford, 93 Pa. Superior Ct: 287 (1928), and Seaman, Adm., v. Curtiss Flying Service, Inc., 247 N. Y. S., 251, 253 (1930).
D. Hughes’ testimony regarding Fischer’s flight in an AT-6 earlier in the day of the accident with one Badger, who performed, in the course of the flight, a maneuver “substantially” the same as that being per*33formed at the time of the crash. This testimony was vague, argumentative, and immaterial.
The admission of the above-mentioned testimony (A, B, C, and D) had the effect (particularly since there was no proof that Fischer had ever performed the precise maneuver which was being attempted at the time of the accident) of confusing and prejudicing the jury.
Motion for Judgment N. O. V.
A. Circumstantial Evidence.
To me the evidence, viewed in the light most favorable to plaintiff, discloses:
1. Defendant’s decedent Fischer was the owner of the plane involved in the accident.
2. Fischer was an experienced flyer whose manner of flying was very abrupt, inexpert, and sharp sometimes. At other times his style was conservative.
3. Plaintiff’s decedent was a less experienced flyer, a student, “. . . normal, like every student; with the little time he put in, he did a good job.” “He . , . just came right along, the way every student should.” He was conservative and cautious while being observed by the witness Mr. Drohan. He had about three and one-half hours’ solo flying to his credit. He had never been seen operating a Kinner Fleet but had been seen operating a Piper Cub solo about five times.
4. The Kinner Fleet was a dual-controlled plane, and Fischer was in control when it took off. It was being operated in a dangerous manner immediately prior to and at the time of the crash. The plane entered the airport contrary to the traffic pattern and dived too close to the ground at too high a speed. Either a reckless maneuver or an attempt to land was being performed unsuccessfully because of lack of skill or care or because of some other unknown factor.
From the above I cannot conclude that the testimony was reasonably subject to the inference that *34the plane was being operated at the time of the crash by Fischer alone. I cannot agree that the circumstantial evidence was “so complete and convincing that it left no room for reasonable doubt.”
. in a civil case the evidence of facts and circumstances on which plaintiff relies and the inferences logically dedueible therefrom, must so preponderate in favor of the basic proposition he is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition’ ”: Polk v. Steel Workers Organizing Committee et al., 360 Pa. 631, 634 (1948), quoting DeReeder v. Travelers Insurance Company, 329 Pa. 328, 334 (1938). The “circumstantial evidence” relied on in the present case is merely evidence of “sharp,” “abrupt,” inconsistent, and inexpert flying on other occasions. As noted above, under the authority of the line of cases headed by Baker v. Irish, supra, evidence of the habit Fischer had of sometimes disregarding the traffic pattern upon entering the field and sometimes “for some unknown reason . . . breaking rules,” etc., should not have been admitted. I shall consider it here, however, as being in the nature of circumstantial evidence. See Cherry v. Mitosky, 353 Pa. 401, 404 (1946). Even considered as such, the illustrations suggested as applicable in weighing the evidence are not self-sustaining. For example, the Jose Iturbi analogy loses some of its force when the following factors are considered: (1) Señor Iturbi’s ability as a piano virtuoso is above the level in his field; according to the testimony in this case, Fischer’s ability was below the level in his field; (2) the visual acuteness and discerning ability of the observer must be comparable, in the case of Fischer, to the musical sense and ear of the hearer in the Iturbi illustration; (3) usually, playing the piano is an art that takes practice, training, and ability with many years of study; flying an airplane is a skill that can be acquired *35in a relatively short time, according to the testimony; therefore, if a student has bravado and a natural aptitude, he can quickly rise to the level of a competent pilot.
The fact that the plane had dual controls, that is, control equipment in the front same as in the rear (the stipulation of counsel was that “ ... it is physically possible to operate the plane here involved from either the front or rear cockpit”), must be kept uppermost in mind when considering the question of contro] at the time of the crash. If it were not for this fact, the reasoning of Flick et al. v. Shimer, Admx., 340 Pa. 481 (1941), cited by plaintiff, would be very persuasive. In that case, there were no dual controls; neither of the two passengers had a driver’s license, neither had the inclination to drive, and neither had driven in recent years. These facts made the evidence of ownership and the proof of defendant’s decedent’s volunteering to take the others for a ride pertinent. The court, in the Flick case, quoted Wigmore for the following proposition: “The conclusions and tests of every day experience must constantly control the standards of legal logic.” Here these conclusions and tests do not eliminate the possibility that a student flyer could interfere with the control of his veteran companion. In all examined cases of dual-controlled planes, where both persons in the plane could fly, the presumption of continued control from the front cockpit has not been allowed. Conceding, arguendo, the majority opinion’s theory that Schumacher did not have sufficient training and skill to maneuver the plane as it was being maneuvered in the , fatal crash, we still have the very strong probability that Schumacher had his hand on the dual control in the rear cockpit while the maneuver was being attempted and interfered with the control to such an extent that a crash resulted.
*36In those jurisdictions where res ipsa loquitur applies, the doctrine has been held inapplicable to cases of dual-controlled airplanes because there is no proof of exclusive control. In Parker et al. v. Granger, 4 Cal. (2d) 668, 52 P. (2d) 226 (1935), defendant owner rented two dual-controlled airplanes to a film company. The planes were piloted by defendant’s licensed pilots. There was evidence that two members of the film company group riding in the plane were to sit behind the dual controls of each plane and “wiggle” the wings as a signal to turn. There was a crash between the planes and it was held that these facts warranted a finding that defendants were not in exclusive control of the planes.
The Supreme Court of South Dakota in Budgett v. Soo Sky Ways, Inc., 64 S. D. 243, 266 N. W. 253 (1936), in deciding that the doctrine could not be invoked in a case where plaintiff’s decedent, Budgett, and one Schmidt, prospective buyers, accompanied defendant’s agent, Hollister, in a dual controlled plane on a ride which ended in a crash fatal to the prospective buyers said:
“It is possible that either Schmidt or Budgett may have taken hold of the stick and moved it in such a way as to have turned the nose of the ship toward the ground, and in that way caused the crash; but there is no evidence that either of them did anything of the kind. On the other hand, the pilot may have made a false move and pulled the stick the wrong way, or he may have made too short a turn or too steep a bank and lost flying speed of the ship, and for that reason it fell to the ground . . . appellant invokes the doctrine of res ipsa loquitur, which, as applied to this case, means that the state of the evidence and the surrounding circumstances were such that the accident could not have happened except through negligence on the part of the pilot. . . . But that doctrine cannot be applied in this *37case, because there is no more probability that the accident was caused by negligence on the part of the defendant than on the part of Budgett or Schmidt.”
In Michigan Aero Club v. Shelley, 283 Mich. 401, 278 N. W. 121 (1938), one Hickey, a licensed pilot, a member of defendant club, obtained custody of a club-owned plane equipped with dual controls and took off with one Madyck, an amateur pilot, for a flight which ended in a crash fatal to both. Speaking for the Supreme Court of Michigan, Mr. Justice Potter said:
“There is nothing except guessing and conjecture to indicate that Hickey, rather than Madyck, was negligently operating the plane. . . . There is no presumption the plane was being operated from the front cockpit. There is no presumption that Hickey was acting properly in the face of the proof the plane was being operated in violation of the club, State and Federal rules . . . Hickey was an experienced flyer, 14 years older than Madyck, was an average pilot, the club rules required members of the club obtain permission from the instructor before taking up passengers. It is just as consistent with what happened to claim that Madyck connected the dual controls, operated the plane from the rear cockpit, was engaged in stunt flying to demonstrate his skill and that Hickey permitted him to do so. . . . This is mere conjecture, but it is not inconsistent with what happened. There is no presumption Madyck was not operating the plane. . . . There is no presumption under the admitted facts that Hickey was operating the plane at the time of the crash.”
Lastly, Chief Justice Green, of the Supreme Court of Tennessee, in Towle v. Phillips, 180 Tenn. 121, 172 S. W. (2d) 806 (1943), a case where plaintiff’s decedent, Towle, was killed along with defendant’s decedent, Webb, in a crash which occurred while both were riding in a dual controlled plane owned and initially oper*38ated by defendant’s decedent, said, in denying the application of the doctrine of res ipsa loquitur:
“This airplane had dual controls. . . . So it is plain that the course of the machine might have been directed by Towle as well as by Webb. ... No doubt the vertical climb was the proximate cause of the crash. On the record before us it may have been caused by Webb’s handling of the controls available to him, or by Towle’s handling of the controls available to him, or it may have been caused by something not explained, for which neither man was responsible. It would be a guess to say that Webb’s negligence was the responsible agency.”
In distinguishing the Towle case, Judge Oliver concluded that in the instant case “aerobatics of a violent nature were being attempted”, but, for all we know, the plane might not have been engaged in a maneuver but may have been out of control, a fact “caused by something not explained for which neither man was responsible.” But, assuming that the plane was being operated in a negligent manner at the time of the crash, this assumption becomes immaterial in the absence of proof that Fischer alone was then controlling the operation of the plane.
Under the evidence in the instant case, it is equally plausible: (1) That Fischer was operating the plane from the start of the trip to the time of the crash; (2) that at some time during the course of the flight Fischer turned over the controls to Schumacher, who, because of his lack of experience, operated the plane in an unsafe manner and at an altitude too low to permit the successful completion of a maneuver or an attempt to land; or (3) that Fischer operated the plane during the two successful completions of the maneuver and, on the third attempt, Schumacher interfered with Fischer’s control of the plane and this interference resulted in the maneuver’s being fatally unsuccessful.
*39These three plausibilities become more apparent when we consider: (1) The testimony of plaintiff’s expert witness Hughes describing “the course of dual instruction”; (2) the fact that Fischer had the rank of instructor and Schumacher the rating of student pilot; (3) the fact that Schumacher and Fischer had spent some time together and had dined with each other at Doylestown before embarking on the fatal flight; (4) the fact that Fischer, although prohibited by contract from giving lessons in his own plane at the Doylestown Airport, was the type who had committed gross violations of traffic patterns and airport rules and regulations ; (5) the fact that Fischer’s plane was equipped with dual controls, making changes of or interference with control while in flight possible. Taking all these circumstances into consideration, it cannot be said with any certainty either that Fischer and Schumacher set out and continued as pilot and guest, respectively, until the time of the fatal crash, or that, having started out as pilot, Fischer proceeded to give instructions to Schumacher who, during the course of the instructions, shared control and was interfering with the control of Fischer at the time of the accident. The evidence, at best, is sufficient only to create a suspicion that Fischer alone and without any interference by Schumacher was operating the plane immediately before and at the time of the crash or to give the jury basis for a guess that such was the fact. The rule applicable is, I believe, clearly stated in Kniess v. Badolato, 343 Pa. 213 (1941), at page 218:
“The inference sought to be drawn . . . collides with other inferences at least equally as plausible and, under these circumstances, he was not entitled to submit his case to the jury.”
In the ease before us there were three possibilities fairly suggested by the evidence and the burden was on plaintiff to show that defendant was liable to the *40exclusion of all other causes: Erbe v. Philadelphia Rapid Transit Company, 256 Pa. 567, 570 (1917); Polk v. Steel Workers Organizing Committee et al., supra, and cases there cited.
It must be remembered that here is not a question of how an accident occurred but rather of who was in control. Cases, therefore, like Tucker v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co., 227 Pa. 66, 68 (1910), dealing with circumstantial evidence, and Bauer, admx., v. Sacks, 355 Pa. 488, 491 (1947), and Kasanovich, admx., v. George et al., 348 Pa. 199, 202 (1943), dealing with the question of wanton misconduct and contributory negligence, are not controlling here, for here not the cause of the injury is at issue but the identity of the tortfeasor. Also distinguishable are cases dealing with identification by physical characteristics, e.g., Brown v. Commonwealth, 76 Pa. 319, 338 (1874). Physical characteristics like voice, gait, and handwriting are frequently used for the purpose of identification on the testimony of either an expert or one familiar with the subject being identified. But whether expert by training or familiar by association, the witness should be testifying to a characteristic which is far enough from the standard to have some probative force. Here there was testimony that the plane was being flown in an abrupt manner. Fischer was wont to fly, sometimes, in an abrupt manner. The adjective, allowing for the experience of the two witnesses and the difference in training and skill of the two flyers, does not have much definitive value. Besides the fact that the plane was being flown in an abrupt manner, the only factor which would tend to identify Fischer was that the “maneuver” required skill; in the opinion of the expert witnesses, Fischer had the skill and Schumacher did not. Apparently there was not enough skill to complete the maneuver.
*41B. Presumptions.
First will be considered the presumption of continued control. The majority opinion relies upon Oller v. Bonebrake, 65 Pa. 338, 344 (1870); Commonwealth v. Fragassa, 278 Pa. 1, 5 (1923); Brennan et al. v. Pine Hill Collieries Co. et al., 312 Pa. 52, 56 (1933), and Zuback v. Bakmaz, 346 Pa. 279, 282 (1943), in support of the proposition that “The rule is a general and reasonable one that things shown to have existed must be presumed to continue in that status until the contrary is established by evidence either direct or presumptive.” This proposition, applied to the circumstances of the instant case, would support the position that the fact that Fischer operated the airplane at the beginning of the fatal trip having been established by direct evidence, “it must be presumed to continue . . . until the contrary is established by evidence.” In effect, this position gives to the ordinary probability that Fischer would continue in control the force of a fact in evidence, shifting the burden of proof to defendant. Mr. Justice Maxey was very painstaking in Watkins v. Prudential Insurance Company, 315 Pa. 497 (1934), in his analysis of the nature and function of presumptions. At page 504 he said:
“They are either (1) a procedural expedient, or (2) a rule of proof production based upon the comparative availability of material evidence to the respective parties, or (3) a conclusion firmly based upon the generally known results of wide human experience, or (4) a combination of (1) and (3).”
Obviously, this so-called presumption does not fall into any one of these categories. It is on a par with the so-called “presumption against suicide” mentioned in the Watkins case. “It is merely a permissible consideration of the nonprobability” of Fischer’s relinquishing control.
*42The presumption that the owner of a vehicle is in control thereof (Holzheimer et ux. v. Lit Brothers, 262 Pa. 150 (1918) ; Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340 (1923)), arises only when the vehicle is a commercial one and bears the owner’s name; it will not arise when the car is a privately owned passenger car (Reed v. Bennett et al., 276 Pa. 107, 111 (1923)), and cannot be called upon when a privately owned plane has dual controls.
There remains for final consideration the presumption of the exercise of due care by one killed in an accident. Unless there is evidence of lack of due care on the part of defendant’s decedent and there is no competent evidence of such lack on the part of plaintiff’s decedent, the presumptions of the due care exercised by both killed in an accident neutralize each other: Johnson v. Hetrick, administratrix, 300 Pa. 225,229 (1930), and cases there considered. Here, the proof of control is not sufficient to allow the presumption to work either way.
Supplemental Opinion
Oliver, P. J.,March 11, 1949. — Certain matters raised in the dissenting opinion filed by one member of this court call for a brief reply.
Defendant’s motion for a new trial was dismissed by our full court. The judge who has written the dissenting opinion concurred in that action, and signed the order of dismissal on our docket. He dissented solely from the order dismissing defendant’s motion for judgment n. o. v.
In dealing with that motion, the dissenting opinion starts with what purports to be a review of all the circumstantial evidence as to who was operating the plane when the crash occurred. It states that “the evidence, viewed in the light most favorable to the plaintiff, discloses.” However, the summary that follows that phrase, which so correctly sets forth the duty of *43the court, covers approximately only a third of the evidence and minimizes that. The force of this comment will appear clearly upon a comparison of the facts making up the circumstantial evidence, as summarized in the opinion of this court and as summarized in the dissenting opinion. The later opinion in its summary of such evidence omits entirely any reference to such important items as the testimony of well qualified experts who stated that the maneuver, which ended in the crash, was one which only a pilot having a high degree of skill and experience could perform; that Fischer had the skill and experience required to perform it; and that Schumacher definitely did not have either such skill or such experience; that Fischer had a very abrupt flying style characterized by sharp, quick maneuvering and rough flying, which style could readily be distinguished from that of any other pilot at the airport; that he habitually entered the traffic pattern of the field with an abrupt right turn, contrary to the field regulations; that Schumacher flew conservatively and entered the traffic pattern consistently with a smooth, gentle turn from the left, in conformity with the regulations; and that this plane, just before the maneuver which ended in the crash, was brought into the traffic pattern in Fischer’s bold style, with a sharp, abrupt, right turn. That is only a part of the evidence which was left out of consideration by the dissenting judge. It cannot accurately be stated therefore that he considered “the evidence, viewed in the light most favorable to the plaintiff”.
In addition, certain of the reasoning in the dissenting opinion overlooks the fact that negligent operation of the plane was conceded. In fact, the negligence was not only obvious but so gross as to amount to recklessness. What the jury had to decide was merely which of the two men was operating the plane. Plaintiff had to prove that by circumstantial evidence. The dissent*44ing opinion is therefore in error when in certain passages thereof it tests the admissibility of evidence, to establish flying style and characteristics, as though such evidence had been offered to establish that which was conceded, negligence.
Also, the doctrine of res ipsa loquitur was not invoked or applied in this case. The negligence was clearly and directly established by proof so convincing it was not even questioned. Therefore, the discussion of that doctrine and of cases dealing with it is not relevant to the issues which were before us.
All of this is in effect recognized by the dissenting judge when, in another part of his opinion, he states, “It must be remembered that here is not a question of how an accident occurred but rather of who was in control”. That, of course, is correct, but it should have been kept in mind consistently, and that, we think, was not done in the drafting of the dissenting opinion.
Finally, the dissenting opinion states that, from the evidence, there are two other inferences which are just as plausible as the inference, drawn by the jury, that Fischer was in exclusive control of the plane during the course of the maneuvers which ended in the crash. The first of these inferences, according to the dissenting opinion, is that “at some time during the course of the flight Fischer turned over the controls to Schumacher, who, because of his lack of experience, operated the plane in an unsafe maneuver and at an altitude too low to permit the successful completion of a maneuver or an attempt to land”. We suggest that that inference cannot fairly be drawn from the evidence, hut only by a process of disregarding the evidence. It fails completely to take into account the testimony that a plane landing is made at slow speed with the engine throttled down, whereas this plane came roaring down to within 25 feet of the ground with its throttle wide open, at approximately three times its *45normal landing speed and did that three times in succession; that clearly the pilot was not attempting to land, but was endeavoring to perform an exceedingly risky and difficult maneuver at a dangerously low altitude; that nonetheless, the pilot had the skill to perform that maneuver three times in succession successfully and brilliantly, and came to grief only when he ascended too sharply after his third effort, causing the plane to stall; that when the plane just prior to those maneuvers had entered the flying pattern of the field, it was flown into that pattern in Fischer’s characteristic manner, with an abrupt right turn, and not in Schumacher’s style, with a conservative, gentle, left turn; that the maneuvers which followed could have been performed, in the manner in which they were performed, only by a skilled and experienced pilot; that Fischer had the skill and experience to so fly the plane; and that Schumacher, who had nothing more than a learner’s permit, did not have it. Obviously, therefore, Fischer was at the controls when the plane came into the field and all through the maneuvers which ended in the crash, just as he was when the plane took off on its short flight, after his announced intention to take Schumacher for a ride.
The second alternative inference suggested in the dissenting opinion is “that Fischer operated the plane during the two successful completions of the maneuver and, on the third attempt, Schumacher interfered with Fischer’s control of the plane and this interference resulted in the maneuver’s being fatally unsuccessful”. It takes little imagination to realize that, when a plane roars down to within 25 feet of the ground with its throttle wide opén and swoops up, turns sharply and repeats the maneuver, it is a hair-raising experience to anyone either in the plane or on the ground nearby. To infer that a novice seated in the rear cockpit of such a plane, who had just started to learn, and who had *46done his few hours of flying in a highly conservative manner, would take over or attempt to take over the controls after two such reckless maneuvers and endeavor to repeat them himself is unjustified and unrealistic. It is infinitely more probable that Schumacher sat huddled in the rear cockpit, with his hair on end, his heart in his mouth and a prayer on his lips. Furthermore, Fischer, having started out on the short flight at the controls and in his own plane, with Schumacher as his guest passenger, the burden was on defendant to show a break in that continuity and that cannot be done by judicial adoption of a mere fantastic possibility which the jury considered and properly rejected.
Likewise, it can no more be inferred in this case that Schumacher at the last moment grabbed the controls than it could have been inferred in the case of Flick et al. v. Shimer, admrx., 340 Pa. 481 (discussed in our original opinion), that the man seated next to Shimer, in a moment of excitement, reached over and grabbed the steering wheel of the' truck in a frantic effort to help Shimer negotiate the curve in the roadway. Indeed, even if Schumacher in fright and desperation, caused by Fischer’s reckless performance, had grabbed.the controls, Fischer would nonetheless be responsible for that consequence of his own reckless conduct. The jury, by its verdict in this case, found that Fischer was in exclusive control of the plane at the time of the accident, that the accident was caused solely by his negligence, and was not contributed to in any way by any negligence on the part of Schumacher. We believe that verdict should not be disturbed.