The opinion of the court was delivered by: MISHLER
The plaintiff, Jeanette B. Schneider, as Executrix under the Last Will and Testament of Harry J. Schneider, deceased, brought this action against the defendant, United States of America, pursuant to the Federal Tort Claims Act (28 U.S.C.A. 1346, 2671 et seq.) to recover for the wrongful death of her husband.
This case was tried before the Court without a jury.
The complaint states two claims. The first claim is for conscious pain and suffering and for medical services. The second claim is for wrongful death for the benefit of the plaintiff and her daughter, Karen Ann Schneider.
On October 15, 1958, a twin-engine cargo plane described as a C-123 Troop Carrier, owner by the defendant, United States of America, and operated and controlled by the United States Air Force, was in flight near Riverhead, flying at an altitude of about 8,000 feet on I.F.R. (Instrument Flight Rules). The aircraft was in a 'race track pattern' near Riverhead and entered that pattern about 8:20 P.M. A 'race track pattern' is described as the direction of flight while maintaining a holding position awaiting instructions when flying on I.F.R.
Prior to entering the 'race track pattern', the aircraft encountered difficulty in the audio-receiving system while flying over Saybrook from Salem. The aircraft held in the 'race track pattern' for 12 or 13 minutes, during which time the pilot attempted to communicate with the control towers at Idlewild Airport and at Riverhead. Instructions were finally received to proceed to Mitchell Air Field Base, Long Island, at approximately 8:30 P.M., at which time the aircraft left the 'race track pattern'.
While over Brentwood at approximately 8:37 P.M., the right engine of the plane quit. The pilot immediately turned toward a rotating beacon at Zahn's Airport and switched to cross-feed fuel for the purpose of feeding fuel from the left tank to the right engine. Shortly thereafter, the left engine quit and the pilot feathered the engines to extend the glide.
During his maneuver and foundering, the pilot suddenly realized that he could not reach Zahn's Airport for an emergency landing. He scanned the lights visible to him from Southern State Parkway and chose to alight on the Parkway knowing that there were automobiles on the Parkway 'because all I could see was homes and lights flickering on the ground -- no possibility of picking out another spot'.
The aircraft skidded along the roadway and went through the underpass at North Lindenhurst in Suffolk County, shearing off both wings and coming to a stop on the other side of the underpass.
At about 8:40 P.M., the time that the aircraft came in contact with the overpass of Southern State Parkway, the decedent Harry J. Schneider, who was lawfully operating a motor vehicle, came in violent collision with the aircraft. He suffered severe injuries which rendered him unconscious. He was removed to South Shore Hospital. He expired at 10:40 P.M. of that day during an emergency operation.
Paragraph 'Thirteenth' of plaintiff's second claim, after alleging negligence generally, specifically alleged that defendant was '* * * further negligent in that they created and maintained a dangerous condition by causing, permitting and allowing the said airplane to run out of fuel and they were further negligent in that they failed to ascertain, prior to its taking off, the amount of fuel required, with the result that the said airplane ran out of fuel to bring the said airplane to its destination, thus creating such a hazardous condition which resulted in the crash landing of this airplane into the motor vehicle of the said deceased, * * * that they failed to have proper radio equipment for communication purposes and to ascertain the condition of the said airplane prior to the said crash * * * the said instruments in the said airplane were not working properly and they were further negligent in that they failed to make proper inspection of the extent of the fuel or to determine the amount of fuel necessary for the flight, for which this plane was scheduled and they were further negligent in that they failed to ascertain the weather conditions before taking off.'
Plaintiff offered proof of the happening of the accident causing the death of the decedent. Plaintiff further offered proof of the specific acts of negligence in the form of Answers to Interrogatories.
On cross-examination of the defendant's witnesses, the plaintiff conducted an extensive probe into the possible causes of the accident. Inquiry was made as to the air worthiness of the aircraft,
maintenance of the aircraft, including the failure to repair ...