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June 22, 1949


The opinion of the court was delivered by: BYERS

This is a personal injury cause instituted under Title 28 U.S.C.A. ┬ž 1346(b), Federal Tort Claims Act, and the procedure is regulated by Sections 2671-2679.

The plaintiff was seriously injured, suffering second and third degree extensive burns, while operating a tractor at Mitchell Field on October 29, 1946, at 3:59 P.M. His vehicle was struck by the wing of a P-51 fighter type airplane which was moving east on a taxiway, having turned into it from the runway which lies more than 1,000 feet to the west of the place of collision.

 Because of its high riding nose when the plane is proceeding on the ground, the pilot was unable to see straight ahead, and consequently had to zigzag in order to observe conditions on the taxiway as he proceeded to his destination, which was one of the several hangars to the east of Butler Hangar shown on Defendant's Exhibit A. That is, when moving to the right he looked out to his left, and vice versa. He had an angle of vision of 45 degrees, being the two center sectors of the 90 degrees are of a quadrant resulting from the right angle formed by a line drawn straight ahead, and one drawn abeam.

 This maneuver is called 'essing', and for present purposes means that the plane crossed the 160-foot concrete strip from right to left and back again during the forward movement. The wing-tip spread is 35 feet, so that the successive turns were made within the limits of about 125 feet in order to preserve a course within the limits of a taxiway. Since the respective headings to left and right were necessarily diagonal to an imaginary center line of the taxiway, it is impossible to state just what area would be included in this restricted range of vision at a given instant.

 The pilot testified that he was proceeding at 1,000 R.M. of the propeller, giving him an estimated ground speed of 15 to 20 M.P.H., and passing the control tower situated at about the southwest corner of the Butler Hangar, he went into or was in a right ess, giving him a lookout to his left or northeast.

 At a little east of Butler Hangar, he started to his left, and was recovering from that (i.e., starting to his right) when his left wing, at about 4 feet from its end, struck the tractor, and thus caused the accident. He shut off his engines and in 3 or 4 seconds came to a stop. He climbed out of his plane and found the plaintiff on the tractor, under the engines of the plane. Gasoline in the tractor's tank at once ignited and before the plaintiff could be lifted clear, he suffered severe burns to both legs, left arm, shoulder, ear and his neck, being the injuries for which he seeks recovery.

 It should be said that hospitalization was required until June 26, 1947, during which period he had numerous skin grafts which were painful in the extreme; he suffered a foot-drop, necessitating the wearing of a brace on the right foot. The skin grafting could not be accomplished until the necrotic areas had been cut out, and this form of surgery was performed about 16 times in all, in connection with which blood transfusions were required.

 Since his discharge from the hospital, the plaintiff has undergone diathermy and other physical therapy. As to one skin graft at least there is a fixation of scar tissue to the heel tendon, and the heel-drop may recur. In the scar tissue areas there will be a greater susceptibility to incidence of tumor growth than would be true in the presence of normal tissue and skin.

 Since June of 1948, the plaintiff has been able to resume work as a truck driver.

 The questions presented are:

 1. Contributory negligence: If that were shown, the plaintiff's cause would be defeated, since the New York law is to that effect, which would govern under the terms of the statute.

 As to this, of course the burden of proof would be with the defendant under recognized principles, and its evidence is entirely negative, since none of its witnesses professes to have seen the tractor, until the actual happening.

 Reliance seems to be had upon the plaintiff's testimony under cross-examination, but that will be found to be of no avail on that issue. The tractor was used to plow out and loosen the seams between the concrete slabs (10 x 20) which constituted the surface of the taxiway. Once those seams or joints had been cleared of the old sealing mixture, a new hot tar preparation was poured into the open seams by those in charge of a truck which followed behind the tractor.

 Removal of the worn or disintegrated filler was accomplished by letting down into a seam or joint, so to be treated, a spike which was rigged on the tractor. Then the latter moved ahead and the spike routed out the filler to be removed. This was not always so accomplished as to leave clean-cut sides, and the plaintiff's helper sometimes walked ahead of the tractor to fix the spike in place, and when that was done, he followed ...

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