Before MEDINA, LUMBARD and BURGER, Circuit Judges.
At 3:43 a.m. on December 16, 1955, an Eastern Air Lines passenger plane crashed as it was making a so-called Instrument Landing System approach to Imeson Airport, Jacksonville, Florida. All aboard were killed. This is an action brought by the widow of one of the deceased under the Wrongful Death Act of the State of Florida. FLA. STAT. ANN. §§ 768.01-02 (1958 Supp.).
It is not disputed that there was sufficient evidence to take the case to the jury, but the evidence from which negligence might be inferred was largely if not wholly circumstantial. It was stipulated that all equipment on the ground and in the plane was functioning properly, and the high intensity runway lights were turned on and in operation. The plane had been cleared for an instrument landing, with a weather report of visibility 1/2 mile, partial obscurement by fog, 300 foot indefinite ceiling, wind 8 m. p. h. The Civil Air Regulations and the pilot's Flight Operation Manual, which were introduced in evidence over appellant's objection, provided the proper standard of care under the circumstances, and the substance of the relevant portions of these documents is to the effect that the pilot was prohibited from descending below the prescribed glide path and the minimum altitude of 200 feet unless he could see where he was going. If conditions did not permit such observation, the pilot was required to execute a "missed approach procedure," fly up out of danger, and make a new approach.
There was testimony on the basis of which the jury might have found that in the vicinity of the crash there was ground fog down to the tops of the trees 60 to 75 feet high, that the plane was coming in at tree top level, and that the place of the crash was about 3/4 of a mile from the runway, 200-300 feet to the left of the approach line.
We first affirm Judge Ryan's ruling admitting into evidence the testimony of the witnesses about the fog and the Regulations and Manual. He properly allowed the jury to consider all facts in their proper perspective and in relation to the standards and criteria set by the appropriate authorities and binding on appellant.
Appellant's principal contention concerns the instructions to the jury, urging as error that Judge Ryan gave the jury a res ipsa loquitur charge despite the fact that appellee had introduced evidence tending to show specific acts of negligence. It is clear that the lex fori, i.e., New York rather than Florida law controls the resolution of this issue. Lobel v. American Airlines, Inc ., 192 F.2d 217 (2d Cir. 1951), cert. denied, 342 U.S. 945 (1952).
Appellant relies on language in some of the New York cases to support its position. For example: "'Hence the presumption or inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has full knowledge and testifies as to the specific act of negligence which is the cause of the injury complained of.'" Whitcher v. Board of Educ ., 233 App. Div. 184, 185, 251 N.Y. Supp. 611, 612-13 (1931), quoting 45 C.J. 1206; see Bressler v. New York Rapid Transit Corp ., 270 N.Y. 409, 1 N.E. 2d 828 (1936); Goodheart v. American Airlines, Inc ., 252 App. Div. 660, 1 N.Y.S. 2d 288 (1937). Close analysis of the cases relied on by appellant shows they do not support its position. On the contrary, they not only support but almost compel the instructions given by Judge Ryan on res ipsa loquitur . See Lobel v. American Airlines, Inc., supra at 219-20, where this court said:
"We do not agree with defendant that it was error to submit the case to the jury on a res ipsa loquitur charge. In his pleadings and in proving his own case, plaintiff met the requirements of the doctrine. The plane was in defendant's exclusive control. The accident was not of the sort which happens in the ordinary course of events without negligence on someone's part. The defendant urges, however, that, by the time the case went to the jury, plaintiff had attempted to prove, and had argued in his summation, that the accident was caused by several specific acts of negligence on defendant's part * * * We can find no New York case which penalizes a res ipsa loquitur plaintiff who, on cross-examination, probes deeply into the defendant's behavior and thus discloses specific acts of negligence that may have caused the accident. We assume the New York courts would oppose any rule which encouraged plaintiffs to go easy on defendants in cross-examination and which destroyed this truthtesting technique in res ipsa loquitur cases, for the information elicited under cross-examination helps the jury to decide intelligently whether or not a permissible inference of negligence should be drawn."
Under the New York law the doctrine of res ipsa loquitur essentially means that, "where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence and to shift the burden of explanation to the defendant. Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859 (1925)." Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38 (1935), quoted with approval in George Foltis, Inc. v. City of New York, 287 N.Y. 108, 114-15, 38 N.E. 2d 455, 459 (1941).
This means that, where these evidentiary requirements of res ipsa have been met, the triers of the facts may reasonably draw an inference that the occurrence was attributable to an unknown act or omission of the defendant. The strength or weakness of the inference will, of course, vary with the circumstances. If the plaintiff introduces evidence tending to prove a specific cause of the occurrence, naturally the strength of the possible inference that the occurrence was attributable to an unknown act of the defendant diminishes. If the cause claimed by the plaintiff is sufficiently probable, the jury will only be confused by an instruction that the occurrence itself suggests the defendant's negligence (by an unknown means). The plaintiff himself will probably not want the jury told that they may infer an unknown cause of the occurrence when he has produced strong proof of a known cause which involves defendant's liability. See Goodheart v. American Airlines, Inc., supra .
In the case at hand plaintiff's proof suggested that the crash might have been caused by the act of the pilot in flying too low in violation of regulations. While this may be one possible explanation of the crash, it is far from the only probable cause of the accident. For instance, the pilot may have completely lost control of the plane before it dipped below the allowable altitude.
Furthermore, the act of flying too low is but one of many links in the chain of causation. Appellant made the only attempt to show what caused the pilot to fly too low, and the jury was free to have disbelieved appellant's evidence concerning a jet plane which supposedly flew near the airliner and forced it down. Other possible explanations (about which there was no evidence) as to why the plane went too low might well involve appellant's negligence, the most likely being simple pilot error. Res ipsa, of course, if applicable, relieves the plaintiff of the burden of direct proof on this causal link.
Prosser says in relation to the problem that "it is quite generally agreed that the introduction of evidence which does not purport to furnish a complete explanation of the occurrence does not deprive the plaintiff of res ipsa loquitur ." PROSSER, TORTS 214 (2d ed. 1955); see Annot., Evidence of Specific Negligence as Affecting Reliance on Res ...