dissenting:
I respectfully dissent.
At the close of plaintiff’s evidence, the trial court purportedly “found” that the plaintiff had failed to produce any evidence that defendant’s negligence constituted the proximate cause of damage to plaintiff’s aircraft. In this determination, the trial court clearly erred, even if one looks upon the court’s declaration as a true “finding,” rather than as an omission to accord plaintiff’s evidence the benefit of all favorable inferences.
The record indicates the trial court realized that the plaintiff had proved negligence; however, the court apparently failed to perceive that plaintiff has also shown “proximate cause,” i.e. a reasonably close causal connection between the negligence and the resulting injury. See W. Prosser, Law of Torts 143 (4th ed. 1971). ,
There is ample evidence of defendant’s negligence in failing to “pre-flight” the aircraft and fill its tanks before taking off from Winnemucca, failing to watch the gas gauges during flight, and allowing the engine to stop in flight for lack of fuel.
It appears from the record that, when the engine stalled, the defendant realized it had run out of gas. Thereupon, he testified, he sought to start the engine again. However, it appears *919without contradiction that, at the time of the plane’s impact with the ground, defendant had the aircraft’s fuel selector switch turned to the left-main tank, which was empty. According to testimony from the FAA investigator, one Fields, three of the aircraft’s tanks (including the left-main) were empty. The right-main contained fifteen gallons of fuel, but it was turned off. Moreover, uncontroverted evidence showed that the aircraft was in excellent condition. Indeed, it had been thoroughly inspected only 9.8 hours before the crash.
Based on this record, even if the declaration be accorded the dignity of a “finding,” the trial court clearly erred in determining that the plaintiff had adduced no evidence of proximate cause. Moreover, it also appears the court erred in precluding expert opinion evidence as to cause of the crash, by foreclosing the testimony of a commercial pilot and flight instructor who had 8,000 hours of experience. This witness, William Drake, would have testified that the plane crashed because the engine was allowed to stall for want of fuel.
The trial court clearly erred, both in its “finding,” and in foreclosing pertinent expert testimony.