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May 24, 1951

UNITED AIR LINES, Inc., et al.

The opinion of the court was delivered by: GALSTON

Following a verdict of $ 300,000 in favor of the plaintiff against both defendants, and a verdict in favor of Douglas on the cross-claim of United against Douglas, motions have been made in respect to the verdicts by both Douglas and United.

The Douglas Aircraft Company, Inc., throughout this opinion will be referred to as Douglas, and United Air Lines, Inc. will be referred to as United.

 The motions of Douglas insofar as the plaintiff's claim is concerned, are for a directed verdict, and in the alternative, for a new trial.

 The motions of United are to set aside the verdict for plaintiff against the defendant United, and the verdict in favor of Douglas on United's cross-claim.

 These motions will be disposed of in this one opinion.

 The plaintiff as widow and administratrix in this action, sought to recover damages for the death of her husband, Anthony DeVito, pursuant to a statute of Pennsylvania, which provides: 'Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her lifetime the widow of any such deceased * * * may maintain an action for and recover damages for the death thus occasioned.' April 15, 1851, P.L. 669, sec. 19, 12 P.S.Pa.Sec. § 1601.

 On June 17, 1948 Anthony DeVito, resident of Brooklyn, New York, was a passenger on board a United DC-6 commercial air liner, designated NC 37506. On a scheduled daylight flight from Chicago to New York, under prevailing good weather conditions, the plane crashed into a hillside near Mt. Carmel, Pennsylvania. All thirty-nine passengers and four crew members were killed in the crash.

 It is the claim of the plaintiff that the catastrophe resulted from the negligence of the defendants. United was the carrier and was in control of the operation of the plane. Douglas was the manufacturer of the plane.

 The cross-claim of United against Douglas is on two counts: (1) an alleged breach of contract, and (2) a claim that if the jury found a verdict for plaintiff against United, then it should hold Douglas responsible for any act of negligence of United.

 With these multiple claims, and a denial of all material allegations relating to negligence and to breach of contract, the parties determined on a course of examination before trial of many witnesses, and the taking of many depositions. And at the trial, the testimony of some forty-odd witnesses in addition was taken, and hundreds of exhibits offered; so that we have a record of over thirty-three hundred typewritten pages.

 At the outset it may be said that it was difficult for the plaintiff, and for the defendant United, to explore the evidentiary grounds. Trial counsel for Douglas certainly did not facilitate them during the taking of the pre-trial depositions; and the trial itself was prolonged to a matter of seven weeks, due in marked degree to prolix examination and cross-examination by trial counsel for Douglas.

 The plane which crashed was sold by Douglas to United on or about March 25, 1947, pursuant to the terms of a purchase agreement which had been entered into between the parties covering that plane and nineteen similar airplanes. United paid Douglas the purchase price, amounting in the aggregate to more than thirteen million dollars.

 On November 11, 1947, all Douglas DC-6S which were then in operation, including NC 37506, were grounded because of fires of undetermined origin that had occurred on other DC-6's at Bryce Canyon, Utah, on October 24, 1947, and at Gallup, New Mexico, on November 11, 1947. Shortly thereafter, a Modification Board was set up, in November and early December 1947, for the purpose of considering recommendations concerning changes in design of the DC-6, in order to avoid a recurrence of the fires at Bryce Canyon and Gallup. Among those who participated in the work of the Modification Board were representatives of Douglas, Civil Aeronautics Board, Civil Aeronautics Administration, United Air Lines, American Air Lines, Pan American-Grace, and National Air Lines. The Board was presided over by Arthur Raymond, a vice-president of Douglas.

 In a letter from Mr. F. W. Conant, a vice-president of Douglas, written November 28, 1947, to Mr. W. A. Patterson, president of United, it was stated that it was the desire of Douglas to make effective such changes as were determined by this board and approved by the Civil Aeronautics Administration. Then, following the meetings of the Modification Board in November and December 1947, Douglas conducted a number of flight tests, in January and February 1948. Douglas then determined the final configuration of the modified DC-6 planes to control or regulate the fire-fighting apparatus, and the ventilation of under-floor baggage compartments, in order, inter alia, to avoid hazardous concentration of carbon-dioxide gas from entering into the habitable compartments of the plane when carbon dioxide was discharged. Thereafter plans, blue-prints and special equipment required in making the changes were furnished by Douglas to United. The actual physical work in meeting the Douglas plans and specifications was performed by United, but at Douglas' expense. Personnel were sent by Douglas to United's repair station to provide technical advice and supervision, and to assist whenever necessary in the incorporation of the changes in the airplanes. During this period numerous 'service bulletins' were furnished by Douglas to United, covering all phases of the modification program. Each of these bulletins covered one or more specific design changes, and explained the reason for the change. On the completion of the modification changes, airplane NC 37506 was authorized by the Civil Aeronautics Administration to resume operation, and accordingly was put back into service of United on June 3, 1948.

 It may be well to note now that evidence introduced by Douglas, as well as by the plaintiff, and which was not disputed by United, disclosed that carbon dioxide had been discharged by the pilots of NC 37506 into the forward baggage compartment shortly before the fatal crash. This fact was one of the circumstances which would seem to have warranted the jury in inferring that concentrations of carbon dioxide entered the cockpit and rendered the pilot and co-pilot incapable of proper control of the plane.

 In support of its motions, Douglas contends that it fully satisfied its duty to warn United of any danger in the operation of the airplane by including in the emergency procedure a warning contained in its operation and maintenance manuals that failure fully to open the emergency pressure relief valves would result in excessive amounts of carbon dioxide entering the cockpit.

 The duty to instruct the users of its DC-6 as to inherent dangers and precautions to meet them rested on Douglas. Douglas knew, and therefore should be charged with the knowledge, that during the flight tests conducted by Douglas in January and February 1948, the test pilots were adversely affected by carbon dioxide entering the cockpit, even when the manually operated cabin pressure relief valve was open, and even though the pilots were wearing oxygen masks of the re-breather type. This evidence weighs heavily against Douglas. Pilot Peyton, Douglas's chief test pilot, told Dr. C. S. White of the Lovelace Clinic that he was 'almost completely out' in one of the test flights. Londelius, another test engineer of Douglas, who was present in the cockpit on Flight A-5, as well as on other flight tests, told Dr. White that Peyton, the pilot, 'just sat there', and the pilot seemed to be excited and was staring straight ahead.

 This condition was so serious that Douglas realized that it was faced with a new problem, a problem not theretofore encountered in the operation of DC-6 airplanes specifically, nor in commercial aviation generally. Mr. Raymond said: 'I would say in the discussions of the Modification Board there was a general awareness of the fact that too high a concentration of CO2 might be expected to cause a starvation of oxygen- in other words, a partial suffocation- but at that time all of the discussions before the Board indicated to me that the people present thought of CO2 as a completely harmless material, except as it might starve out oxygen. After all, it is something that we breathe out every time we breathe.'

 Nevertheless, the results of the flight tests were regarded as so disturbing as to cause Douglas to retain the Lovelace Clinic Aero-Medical Specialists to conduct a survey. The report of Dr. White, the representative sent by Lovelace Clinic to the Douglas plant to conduct the investigation, was submitted to Douglas in February of 1948. As will presently appear, the jury could very well have reached the conclusion that the Mt. Carmel catastrophe stemmed from the 'active' negligence of Douglas in respect to this report. The report raises a question whether the flight tests conducted by Douglas and which resulted in the final configuration as to emergency fire-fighting procedures, especially the procedure for ventilating the airplanes after the discharge of the carbon dioxide, adequately met the problem of hazard of carbon dioxide concentration. The report, among other matters, recited:

 '3. Carbon Dioxide gas is toxic to humans because it produces anoxia, a gaseous acidosis of the blood and irritation of the eyes and respiratory passages. A relatively severe acidosis may produce rapid failure of the normal healthy heart.

 '7. There is a need for more research on the toxic effects of inspiring CO2 gas both at ground level and altitude.

 '9. A number of circumstances occurred during Flight Test of Fire Emergency procedures in DC-6 aircraft which reflected the lack of thorough medical indoctrination in Flight Test procedures.

 '11. Rapidly fatal results may follow exposure to high CO2 concentrations. Personnel should not enter areas or compartments into which CO2 has been discharged until adequate ventilation has ensued and then only with caution. If it is necessary to enter a CO2 rich atmosphere, a closed respiratory system must be insured and the eyes must be adequately protected.

 '12. The technique used for gas sampling aboard the DC-6 on test flights, while practical for collecting gas from the compartments below deck, was considered inadequate for use in habited areas of the aircraft. For physiological purposes accuracy is essential, and Haldane (29) years ago pointed out the error in assuming complete air exchange within hollow tubes such as gas pipettes when air is led in through a glass entry tube and the pipette is vented by a similar tube at the other end. Displacement or vacuum type sampling is a more acceptable and accurate method from the biochemical standpoint.

 '15. Variations in CO2 expansion when the gas is released into a 'cold' and a 'hot' below deck area can be expected. Cockpit and cabin CO2 concentrations may vary under the two conditions depending on the pressure differential which exists across the deck. Until this point is checked in flight, the CO2 concentrations obtained during fire emergency procedures to date, are open to some question.'

 Dr. White made the following recommendations:

 '1. Maximal allowable CO2 concentrations for habited compartments in aircraft be established in commercial aviation and that the relevant material in this report be made available to the CAA, the aircraft industry, the Airline Medical Directors' Association, and the ATA as an aid in establishing and accepting industry-wide regulations in this regard.

 '2. Research in the toxic effects of inspiring CO2 gas at altitude be stimulated by whatever means is necessary to insure obtaining adequate data.

 '3. Engineering, technical and flight test personnel, along with the medical department of the Douglas Aircraft Company, be made cognizant of the data contained herein.

 '4. Appropriate information pertaining to CO2 toxicity, symptoms, precautionary measures and flight test procedures for initial testing of CO2 gear and smoke evacuation procedures be disseminated to all airline companies who use DC-6 equipment, providing this is consistent with the policy of the Douglas Company.

 '5. The methods used for arriving at CO2 gas concentrations in the cabin and cockpit during flight be improved to conform with accepted physiological procedures.

 '8. Flight test of fire emergency procedure for the DC-6 be continued to: 1) more accurately determine peak CO2 concentrations in the cockpit and cabin using refining methods; 2) determine the effect on cabin and cockpit contamination, if any, of firing CO2 into a 'hot' rather than a 'cold' below deck compartment, especially if cabin pressure is stabalized (sic) in the attempt to prolong higher CO2 concentrations in the compartments beneath the floor; * * *.'

 There is no evidence to rebut or dispute the accuracy or validity of Dr. White's report.

 It is clear that Dr. White's report was never transmitted to United before the accident. The most that Douglas can claim in this regard is that Donald Douglas, Jr. testified that he had discussed the report with Christenson, United's flight safety engineer, before the Mt. Carmel accident. Christenson denies ever having heard of the Dr. White report from Douglas or any other official or employee, or from anybody else, before June 17, 1948, the date of the crash. But taking the Douglas testimony at face value, it would appear that his discussion was limited to time concentration values. The jury might well have questioned whether this so-called 'discussion' constituted knowledge on United's part of the complete contents of Dr. White's report. Curious too in this connection is the testimony of Brush, chief pilot of Douglas. Referring to the White report he said: 'I read most of the report, the parts which were most pertinent to what we were doing. I probably did not spend more than, oh, an hour on the report; a report of that nature cannot be properly evaluated in an hour.'

 On this vital subject relating to the hazard of undue concentration of CO2 in cabin or cockpit quarters of the plane, it is of interest to note that key personnel in the Douglas organization had no knowledge of either the flight tests or of the White report before June 17, 1948. For example, Mr. Raymond, the Douglas vice president who has been referred to before, testified that no results of any tests involving the discharge of carbon dioxide in the fuselage of the airplane were called to his attention during the Modification program, and as to the White report, he said: 'I didn't even know about it.'

 Dr. White had advised, in his report, the dissemination of the information contained therein to all users of the DC-6, as well as to the Civil Aeronautics Administration. On the original letter transmitting the report from White to Douglas, and at the time it was received by Douglas, a chief test pilot of Douglas wrote on the face: 'do not discuss with CAA' and transmitted it to two other pilots, Foulds and Peyton, Peyton being one of those pilots who had had the disturbing experience with CO2 in the January flight tests. And as the attorney for the plaintiff pointed out in his argument against the motion of Douglas to dismiss, at the close of the plaintiff's case, 'if it were not for the fortunate circumstance that photostatic copies had been made of that original letter, before the erasure, which is in evidence, so that a comparison of the photostat and the original shows a complete erasure from the original, but shows the words had been there, 'Do not discuss with CAA,' shows that on the photostat, and it was finally conceded, after many many pages of testimony, that that is what the words were because they were not too legible at the time the photostatic copy was seen, but those were the words.'

 In order to avoid compelling inferences that here resided inescapable proof of negligence that contributed to the happening of the tragic crash, Douglas contends that the Proposed Civil Aeronautics Administration Safety Regulation Release, submitted in 1947 (Douglas Ex. G), and the United flight bulletin of June 16, 1948 (which was not released by United until after the Mt. Carmel accident) indicate that United knew of the toxic nature of carbon dioxide gas and the danger which might arise from excessive amounts thereof entering the cockpit. But the Proposed Safety Release, so far as the evidence discloses, was never actually adopted by the Civil Aeronautics Administration. The Release states that from the standpoint of toxicity, 'CO2 has a definite advantage over other (fire extinguishing) agents in that relatively higher concentrations (10% by volume) can be reached without seriously affecting personnel.'

 In the letter of A. W. Dallas, Director of Engineering, Air Transport Association of America, dated November 21, 1947, containing comments of the Proposed Safety Regulation Release as requested by the Civil Aeronautics Administration, the following is stated:

 'Page 2- General Considerations

 'The attempt under these general considerations has been to outline for information purposes the various factors connected with the different fire extinguishing agents. We believe that such explanations are very helpful to the industry but in this particular case we feel that the ...

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