State Ex Rel. Birckhead v. Sammon

¹⁸¹ Urner, J., delivered the opinion of the Court. As two boys were riding their bicycles, on the afternoon of April 7th, 1935, across the flying field of the Curtiss-Wright Airport near Baltimore, along the course of a formerly used road, the rider in the lead was struck and killed by an airplane as it was gliding to the ground. The mother of the boy who was the victim of the tragedy brought this suit against Captain James S. Sammon, who owned and was operating the airplane, and also against Baltimore Air Terminals, Inc., the owner and lessor of the airport, Baltimore Flying Service, Inc., its lessee, and Hochschild, Kohn & Co., Inc., a corporation which had advertised and conducted a toy balloon contest at the airport on the day of the accident. The declaration alleges that the defendants were jointly negligent in failing to take proper precautions against such a misadventure as the one by which the plaintiff’s son lost his life.

The suit ended in a judgment of non pros, as to Baltimore Air Terminals, Inc., after its separate demurrer to the declaration had been sustained and the plaintiff had not taken advantage of a leave to amend. At the trial of the issues joined on the pleas of the other defendants, a directed verdict was rendered in favor of Baltimore Flying Service, Inc., and Hochschild, Kohn & Co., when the testimony for the plaintiff was concluded, and the case was also withdrawn from the jury as to Captain Sammon when evidence in his behalf and in rebuttal had been presented. The only exceptions in the record were taken because of the instructions which exempted those three defendants from the liability charged in the declaration. The Curtiss-Wright Airport occupies an area about 1,400 yards in length and breadth between Smith Avenue on the north, Clark’s Lane on the south and west, and Greenspring Avenue on the east.

There is an entrance to the airport from Smith Avenue, near which the hangars are located. Clark’s Lane originally extended across the ground now used for the airport, but in order that the area might be made available for that purpose, ¹⁸² the course of the lane was diverted to the south and west. After its abandonment, however, as a public thoroughfare, that portion of the lane which intersected the land acquired for the airport was not obliterated, but at the time of the accident was an apparently usable roadway. It led from Clark’s Lane northwardly towards the hangars.

The two boys were riding along the road in that direction and had passed over the field for more than half of its width when the accident occurred. The airplane involved in it had circled the field, and, after making a turn about a mile to the west, was gliding eastwardly to its landing. From the testimony of the plaintiff’s first witness we quote as follows: “I was at the airport at Smith Avenue on the day of the accident. * * * I was there in my car with my wife' and family, about one hundred feet west of the westernmost hangar on the northern edge of the field, facing south, and I saw the accident happen. My wife and I were seated in my car, and my wife called my attention to two boys who were proceeding roughly northward across this field, and I looked up and saw an airplane coming in for landing.

Something told me an accident was going to be inevitable, and I stepped out of the car and just as I did the plane struck the boy. I ran out on the field, reached him I suppose within a minute after the plane struck him, and looked the boy over and saw that he was dead. * * * The boy who was killed was in the lead. * * * Subsequently I went to the field and located where the accident took place and made some measurements of distances from the place of the accident. Pacing it off I decided it was about 325 yards from the extreme western edge of the field to the point of impact where the boy was struck. It was 350 yards from the back entrance of the field to the point where the boy was struck, that is as the road runs not on a direct line. * * * “(The Court) Now what road is that?

A. That is the road which crosses the airport on which the boy was traveling when he was struck. * * * ¹⁸³ “Q. Were there any automobiles on the other side of the field from where you were? A. Yes, sir. They were pretty generally scattered over the southern boundary of the field. * * * “Q. Now you speak of a well defined road. Do you mean at the end where the airport hangars are?

A. No, sir, I mean the entire length of the road across the field. * * * The road does become more indistinct as it approaches the hangars. It is very well defined at the southern boundary and at the point where the boy was struck it is even gravel. * * * They were riding or proceeding slowly. * * * I saw the boy look up just a few seconds before the plane struck him and throw himself off his wheel. * * * “I went out to the field because I read a newspaper story about ‘Clem Sohn, the Bat Man,’ and that is what took me out there. There was a big crowd out there. I did not make any definite attempt to estimate, but I would say perhaps 3000. * * * “It is my impression that the plane carrying the man who made the jump was in the air when the boy was killed. * * * ” Descriptions of the accident by other witnesses were similar to the one already quoted, and their testimony referred to the roadway on which the plaintiff’s son was killed as apparently having been “traversed frequently,” and as having “tracks where machines run.” Harold Molz, eleven years of age, who was the companion of the plaintiff’s twelve year old son at the time of the accident, testified: “I was the boy who was with Harry Birckhead when he was hit by the airplane.

Earlier that afternoon, after I ate my lunch, I went around to the lot where we play baseball and we had a game of baseball. Harry Birckhead was playing baseball also, and then we saw this airplane doing some sky writing, and it said something about ‘Chevrolet welcomes you’ or something like that, and then I said I would not mind going over there. He said, ‘Well, I can go.’ * * * Then we went up to the field, crossed ¹⁸⁴ Clark’s Lane and went in the field. We got up there and looked arounü to see if any planes were getting ready to take off, and we didn’t see none—we didn’t see any getting ready to fly around, and then we got on our bikes and crossed. “Q. How did you get into the airport?

A. You see there is an entrance on Clark’s Lane and we went through that, right through, and didn’t get off our bicycles. “Q. Rode right on through that entrance? And when you got into that entrance were there any automobiles around there? A. Yes, sir, about six or eight, and people standing around looking at the affair. “Q. Well, was there any sign up there or something telling you not to enter that way? A. No, sir. “Q. Was there any police or anybody to stop you from going in there?

A. No sir, nobody. “Q. Nobody said anything to you to the contrary at all? A. No, sir. We got off our bikes and we looked around and then he got on his bike and we crossed the field, and I got off mine and started to walk awhile, and the airplane came and I hollered to him and he jumped off his bike and the airplane hit him. * * * “I had known Harry Birckhead a long time. He was a year or two older than I. I used to call him ‘Bricky.’ * * * “When I first got into the field I got off my bicycle and looked to see if any airplanes were coming down or taking off, and Bricky did that too. * * * “(The Court) I would like to know when you bad first seen that airplane.

Now I don’t mean when it was about to come swooping down, but had you seen it at any time before? A. No sir. I was riding my bicycle when I first saw it, and I holléred to him and then I got off my bike and kept hollering. * * * “Q. Did he answer you at all when you called to him? A. He turned his head and saw the ship, and then he jumped.

I was riding behind him, about twenty-five or thirty feet. * * * ¹⁸⁵ “Q. When you and Bricky were riding up and came through the entrance and started across the field, did you follow any road? A. Yes sir, we followed the—like tracks, tracks like two wheels of an automobile or truck would make. We rode on our bicycles in those tracks.- * * * “Q. Will you state whether or not you knew about this air circus before seeing the sky writing which said ‘Chevrolet bids you welcome’? A. Yes, sir, I did.

I saw about it in one of the papers.” Colonel William D. Tipton is president of the Baltimore Flying Service, Inc. He was called as a witness for the plaintiff, and we quote the following from his testimony: “I arranged with Hochschild, Kohn and Company to permit them to use the airport on Sunday, April 7th, 1935, for a balloon contest. This contest was advertised. * * * On the afternoon of the exhibition visibility was almost perfect * * *. There were two representatives from Hochschild, Kohn and Company at the exhibition * * *. I am familiar with the sort of airplane that was used by Captain Sammon at this time.

It was an Alexander Eagle Rock with a Curtiss Challenger engine. The top speed is about 1,15 miles an hour I would say. I judge the landing speed to be about 45 miles. * * * In approaching a landing field the Department of Commerce regulations require a lefthand circle of the field and a straight approach of 1000 feet to the border of the field in making a landing. * * * The lefthand circle is required so as to put all approaching traffic in one way travel around the field, and also to give the pilot an opportunity to see that the field is clear prior to landing. When he starts his descent he can see the field, I will not say directly ahead, but to his right, because there is a certain part of the fuselage which is attached to the airplane directly ahead of him which obscures his vision directly ahead. “Q. Well, is there any particular way or approved method of changing that blind spot in front of you?

A. ¹⁸⁶ Yes, by what we call fishtailing.. May I use this mo.del? The blind spot is produced by the front part of the fuselage and the pilot can kick the airplane sideways like that (illustrating) to get a view directly ahead of him. “Q. That is a well known method? A. That’s standard practice.

The traffic was quite heavy on the field that afternoon. I made a pretty close estimate that there were at least 150 landings and take-offs from two-thirty until the time of this accident during that afternoon. “Q. Hochschild, Kohn and Company, did not make any condition that there shouldn’t be any landings or takeoffs? A. No sir, but we did suspend all flying at the time their balloon contest was conducted. We stopped all flights to let those youngsters go out on the field and release their balloons, and then they were brought back in behind the fence and the flying went on again.

There was an announcer out there during the whole of the afternoon, a Mr. Hildebrand. He used a very powerful sound truck that could be used over the entire area. He was paid by Hochschild, Kohn and Company. He was there until after the accident occurred. :|: * *” On cross-examination Colonel Tipton testified: “Captain Sammon’s plane was a biplane.

A pilot can, by fishtailing a little bit when coming in, see the ground in front of him where he is going to land. “Q. If he does that is there anything to prevent him from seeing a boy on a bicycle or anybody in the path where he would land? A. The boy should be visible from a reasonable distance, I should say. “Q. So there is nothing in there to prevent him from seeing him if he fishtails down into the field as you described? A. No, I should say not. * * * “Q. Colonel Tipton, when you land a plane customarily do you usually fishtail as you call it? A. No, not always. “Q. Do I understand you to say that is approved by the Department of Commerce regulations, the fishtailing?

A. No, I say that is standard practice for clearing the blind spot. It slightly reduces the speed of a landing. It would not be difficult to pick your speed up again, ¹⁸⁷ because as you cease fishtailing you gradually—not immediately, regain your speed. The engine part of the fuselage makes a blind spot directly ahead, but by leaning from one side to the other you can partially reduce that blind spot and you eliminate it by fishtailing. “Q. How about the lower wing if you don’t fishtail?

A. You can’t see directly below you, but you can see ahead on a normal gliding angle. You could see two or three thousand feet I should say. You can see completely across our airport, which is four thousand feet. “Q. How close to you ahead can you see? A. The normal practice is to look at a spot two or three hundred feet ahead of you directly at the field when you are landing, rather than directly down below you, but your field of vision is, of course, taking in items farther ahead, farther to the right and closer to you, but I should say you focus your attention on a point about three hundred feet ahead. * * * “Q. If the plane were going at forty-five miles an hour and the operator attempts to fishtail it, would there be any danger connected with that?

A. If he were right at the stalling speed, which is the minimum speed at which the plane will fly, fishtailing will have a tendency to make an airplane stall, but, anticipating the need of this fishtailing we speak of, the pilot might nose his ship over a little more into a slightly steeper glide and gain some additional speed before he decides he wants to fishtail. * * * “Q. Do you always feel there is a need for fishtailing as a pilot yourself ? A. You never can tell. I don’t think you always do, but it certainly is good practice. * * * “The arrangement I had with Hochschild, Kohn and Company was that I give them the privilege of holding this balloon contest on the flying field at this airport, and they paid fifty dollars for that privilege. I inquired of Hochschild, Kohn and Company whether or not they had an announcer for the balloon contest, and suggested the name of an announcer, a Mr. Hildebrandt, and he ¹⁸⁸ announced for them on that balloon contest.

I told Hochschild, Kohn that he charges ten dollars. * * * “(The Court) What control if any of the flying field or of parts of the flying field did you relinquish to Hochschild, Kohn? A. The complete use of the field during the actual time of the balloon contest, which I judge was about one-half hour, between three-thirty and four. * * * “I told Mr. Sondheim (Vice President of Hochschild, Kohn and Company) that they could have the tuse of the flying field during the time necessary to stage this balloon contest, and that I would arrange with the Baltimore County police for a detail of police to police the entire field. We had no specific time when their control began or ended, except that the advertising listed that the affair should go on at 2 :30. I believe it was slightly late. * * * “(The Court) And you negotiated simply and solely for a balloon contest?

A. That’s right. “Q. And these negotiations and arrangements that you had with Hochschild, Kohn and Company, can you tell us whether they had anything to do with any other of these air stunts? A. No sir, they had nothing to do with anything else that went on out there. * * * “I should say I fishtail slightly in practically all landings in an airplane that has a distinct blind spot directly ahead. * * * I would say generally speaking that the greater majority of landings are done with a slight amount of fishtailing. “Q. And at a licensed airport with a normal runway when a man comes in he' should fishtail? A. I think so; There might be an airplane directly ahead of him taking off. * * * “I know Captain Sammon. He kept his plane at the Curtiss-Wright Airport.

He was in no way connected with the Baltimore Flying Service, Inc. I didn’t see the accident. His plane was out there in the field making flights that day before the accident. It was returning from one of these flights when the accident occurred. ¹⁸⁹ * * * He was an owner who was flying purely for his own pleasure and had no connection with the so-called air circus.” Hochschild, Kohn & Co., by radio and newspaper publicity, advertised a toy balloon contest and air circus at Curtiss-Wright Airport at 2:30 o’clock on the afternoon of April 7th, 1935. Some of the radio advertisements stated that the details of the contest would be explained at Hochschild, Kohn & Co.’s toy department.

A more extended newspaper advertisement was as follows: “Hochschild, Kohn & Company Balloon Contest: A half-hour