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February 7, 1957

Shirley HERMAN, as Administratrix of the goods, chattels and credits which were of Samuel Herman, deceased, Plaintiff,

The opinion of the court was delivered by: GALSTON

This action was removed by the defendant from the state court on the ground of diversity of citizenship.

There are two causes of action alleged in the complaint.

As to the first cause of action, it is said that Samuel Herman, a resident of Kings County, was a passenger on a plane owned and operated by the defendant; that the plane was caused to crash land on July 17, 1951 as a result of the carelessness and negligence of the defendant near the Charles River in the vicinity of Richmond, Virginia; that as a result of the defendant's negligence, plaintiff's intestate was severely and seriously injured, bruised and wounded, and suffered great physical and mental pain, and became sick, sore and disabled. In the prayer in this first cause of action, the plaintiff's intestate is alleged to have suffered damage in the sum of $ 100,000.

 The second cause of action alleges that as a result of the injuries which Herman sustained he died, on November 24, 1951.

 It is alleged that the laws of the State of Virginia determine the rights of the plaintiff.

 The answer denies all allegations relating to carelessness or negligence, and sets up, as a first defense, that the Wrongful Death Act of the State of Virginia, referred to in the complaint, limits a recovery to $ 15,000 in the event of proved liability of the defendant, and also alleges that the aircraft operated by the defendant was not in the exclusive management or control of the defendant, but was subject to and under the control of the United States, and that the decedent knew or should have known that he traveled subject to the risks and perils of the air, over which the defendant had no control, and that the emergency landing of the aircraft resulted solely from the risks and perils over which the defendant had no control.

 It is clear that the issues in the case may be briefly recited as follows:

 (1) Was the decedent injured in the emergency crash landing?

 (2) Did he die as a result of the crash landing?

 (3) Was the injury, if any, which decedent sustained due to the negligence of the defendant?

 (4) Was the death of the decedent due to the negligence of the defendant?

 (5) What was the liability, if any, pursuant to the laws of the State of Virginia in respect to the alleged causes of action?

 Prior to the trial of the action the plaintiff required the defendant to answer certain written interrogatories. From the answers thereto, it appears that Samuel Herman was a paying passenger on the flight in question; that the captain of the airplane was John B. Armstrong, the pilot William C. Davis and the engineer David B. Lane; that the log of the flight was furnished. Interrogatory No. 15 required an answer to the question: 'State what a hydraulic reservoir access door was on the said aircraft on Flight 601 on July 19, 1951.' The answer was: 'An access door being a hinged door approximately nine inches wide and fifteen inches long with four latches.' The four latches were of the spring loaded type, opening manually. Their condition was good, and at the time of the examination thereof, on July 19, 1951, their condition likewise was found to be good. Additional interrogatories and answers are referred to later on in this opinion.

 According to the testimony, on July 19, 1951, plaintiff's intestate boarded defendant's plane, a four-engined Constellation, at Newark, New Jersey, for a flight to Miami, Florida. About an hour after the take-off, the flight encountered a severe hail storm. The turbulence caused by the storm buffeted the plane so that at one time an updraft lifted the plane about 5,000 feet. The testimony discloses that the plane also experienced unusual vibrations, which the pilot could not understand. These vibrations ceased when the plane cleared the storm area. Shortly thereafter, however, the plane entered the storm area again, and again experienced the buffeting previously encountered, which continued and became quite violent, even after the plane had cleared the storm area. The pilot decided on an emergency landing because of the continuing severe and unusual vibrations of the plane, and he brought the plane down in a field of growing corn. The emergency landing was made with the landing gears retracted and at a speed of about one hundred and twenty miles an hour. It appears from the evidence that the plane slid along the ground for approximately 1,600 feet before it came to a stop. Friction caused by metal parts of the plane coming into contract with the corn stalks started a fire on the wing of the plane near the number four engine.

 When the plane had come to a stop the passengers were evacuated without incident, and they walked to a barn nearby where they were given temporary shelter. They were later transported by bus to Baltimore and lodged in a hotel. The testimony discloses that none of the passengers was aware that an emergency landing was imminent. There is no evidence that any passenger was injured, nor that any passenger requested medical attention or first aid.

 At his request the plaintiff's intestate was flown to Miami on another of defendant's planes, arriving in Miami early the following morning. He remained in Miami for three days, during which time he did not see a doctor. Plaintiff testified that decedent was 'nervous; he was fidgety; he was very upset; he counldn't even eat.' Decedent flew back to New York and on July 25, 1951, went to see a doctor. According to the testimony of Dr. Shookhoff, the doctor who examined him, decedent, in describing the emergency landing on July 19th stated he suffered no contusions or abrasions or injuries. Decedent told Dr. Shookhoff, however, that he was ...

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