The opinion of the court was delivered by: BYERS
These cases consolidated for trial resulted from the wrecking of a localizer building and serious damage to its equipment, on December 30, 1945 by the Eastern Air Lines (to be called Eastern) DC-3 plane which over-ran Runway 4, LaGuardia Field, and continued through the localizer building beyond the end of the runway and out into Flushing Bay; there it floated for a sufficient time so that all on board save one, were rescued.
The hour was about 9:13 P.M. and the over-running resulted from the failure of the brakes of the landing gear to stop the plane, because of the presence of snow and slush on the runway; the latter is 5,000 feet long, but the plane landed about halfway along, or about 2,500 feet from the far end under conditions which the pilot deemed to be emergent. Hence the failure of braking action to avoid the outcome which has been stated.
Although the pilot knew of the presence of the localizer building, 175 feet beyond the end of Runway 4, he was not aware that his plane had struck it, or of any effect upon the forward progress of the plane.
The controversy does not involve the incidents above summarized, but certain aspects of the situation in its entirety.
The first cause was instituted in the Southern District by the Government to recover for damage sustained in the wrecking of the localizer building and to the equipment. The answer asserted a counterclaim for damage to the plane. That suit was transferred to this court.
The second cause was instituted here by the Eastern against the Government for the same damage as was asserted in the counterclaim filed in the first case. As the result of a stipulation the pleadings were amended so that the Government now pleads contributory negligence and assumption of risk on the part of Eastern, the Government to have the right to open and close. Later stipulations imported into Eastern's case the assertion that the erection and maintenance of the localizer building constituted negligence and also a nuisance.
The Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., is relied upon for Eastern which the Government asserts does not apply; also that the nuisance aspect of the Eastern case is barred by limitation. This defense seems to have been abandoned.
The various contentions will now be examined.
This was a wooden structure located on and across the center lien of an extension of Runway 4, 58' 4' x 42 x 8. The 12 foot width was reduced to 8 feet on each wing. Thus the building lay athwart the extension of the runway and 175 feet beyond its N.E. end and about 25 feet inside the shore of Flushing Bay. Erection took place in 1942, over three years prior to the happening involved.
The equipment so housed consisted of transmitters resting in a water-tight underground foundation, with antenna above ground. These were required -- according to then current technical teaching -- to be located on a projection of the center line of the runway. Since there is no testimony or indeed argument to the contrary, the finding is that the localizer building was properly placed over the center line as extended, of Runway 4. As to its height there is something further to be said.
It is likewise found that the localizer building occupied the place that it did under the authority of the C.A.A., which approved of the site.
In support of this finding it will be sufficient to quote the statement of defendant's counsel in the record (p. 211):
'As a matter of fact, more than under the authority (of the C.A.A.). They were the ones that paid for it, they were the ones that were responsible for putting it there.'
While the building was 8 feet in height above the extension on which it rested, it was actually between 5 and 5 1/2 feet above the plane of the runway itself, because the extension sloped downward to the side of Flushing Bay; at the southerly face of the building (175 feet from the northerly end of the runway), the surface of the extension was 1 1/2 feet below the plane of the runway.
The foregoing is a finding as to which it is understood that there is no contest.
The equipment of the localizer is found to have consisted of a localizer transmitter which provided a radio beam to furnish directional guidance with respect to the center line of the runway; and two (three?) markers intended to give 'positional guidance or position fix indication to the approaching aircraft.'
There were obstruction lights on the roof of the building, 'because the building itself constituted an intrusion above the obstruction plane defined by Civil Aeronautic standards' according to the testimony of the witness Brown of the C.A.A., who was in 1941 Construction Engineer attached to the C.A.A. and is new Chief of the Facilities of Region 1 (C.A.A.).
There is no testimony to establish whether the 'obstruction plane' is that of the runway, in which case the 'intrusion' would be from nil to 6 inches, or of the ...