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Boele v. Colonial Western Airways

Decided: January 31, 1933.

DINA BOELE, ADMINISTRATRIX AD PROSEQUENDUM OF THE GOODS AND CHATTELS OF ANTON M. BOELE, DECEASED, PLAINTIFF-APPELLEE,
v.
COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT-APPELLANT; MARY HENDERSON, ADMINISTRATRIX AS PROSEQUENDUM OF THE GOODS AND CHATTELS OF THOMAS J. HENDERSON, DECEASED, PLAINTIFF-APPELLEE, V. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the defendant-appellant, McDermott, Enright & Carpenter (James D. Carpenter, Jr., and William Dike Reed).

For the plaintiffs-respondents, James A. Coolahan and William George.

Bodine

The opinion of the court was delivered by

BODINE, J. The plaintiffs in these actions, tried together by consent, recovered damages by reason of the death of their respective intestates in an airplane accident near the Newark

Airport on March 17th, 1929. The verdicts, rules reserving exceptions being granted, were reduced. The questions argued on the rules were: the verdicts were excessive and contrary to the weight of evidence and the charge of the court.

A case involving the falling of the same plane was before the Supreme Court on rule to show cause. Ziser v. Colonial Western Airways, Inc., 10 N.J. Mis. R. 1118.

The plaintiffs' intestates purchased tickets for a trip from the Newark Airport around New York and return. The plane used was a Ford trimotor monoplane. The controls were held by pilot Lou Foote, who alone survived. The plane was licensed to carry twelve passengers, exclusive of crew, but on the flight in question fourteen passengers were carried, thirteen sitting in the cabin and one in the cockpit beside the pilot. At about five o'clock, the plane took off on its last flight and rose lazily, not gaining the altitude which had been reached on previous flights. The pilot gained an altitude of about one hundred and fifty feet, when he had gone about one thousand feet from the take-off, he turned sharply and continued with considerably increased speed down wind, gaining altitude. He then turned in the direction of New York. The plane then began to fall. Stretching before the path of the plane were factories, tall chimneys, railroad tracks and embankments, railroad cars and high tension wires. The plane was rapidly dropping and sank lower and lower. Foote tried to reach for the open country but failed, and the plane crashed on a steel railroad car loaded with sand. All the passengers in the cabin were instantly killed. The passenger seated in the cockpit beside the pilot died within twenty-four hours.

The trial judge charged the jury that the charge of negligence was based upon the failure and neglect of the defendant to exercise due and proper care in the operation, maintenance and control of the airplane in that it permitted (1) the motors and other parts of the plane to become defective, unsecured and insufficient; (2) that it failed to make a proper inspection of the plane before the plaintiff's intestates became passengers; (3) that it was negligent in employing and engaging

an incompetent and unskillful pilot or operator for the plane; and (4) in employing a pilot who was ignorant and unfamiliar with the landing field and other parts of the airport.

In the case of Ziser v. Colonial Western Airways, Inc., 10 N.J. Mis. R. 1118, 1121, the Supreme Court said: "We think the jury were clearly entitled to take the case on the theory that there was negligence in entrusting the plane to a pilot new to the locality and unfamiliar with the terrain * * * and in loading the plane beyond the numerical limit set by the rules. The fact that ...


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