On appeal from the Supreme Court.
For the plaintiff-appellant, Charles Stockdell Gray (John F. Ryan, of counsel).
For the defendants-respondents, Abe J. David.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of nonsuit entered in favor of the defendants in the Union Circuit of the Supreme Court.
Plaintiff's intestate, Vernie E. Moon, met his death while engaged in the act of aiding the defendant Donald Lewis to start the motor of an aeroplane. Moon was an employe at the Westfield Airport, where the accident occurred, and it was part of his duty to aid the flyers in starting the motors of the various aeroplanes. The defendant Donald Lewis, a student flyer, was sitting in the pilot's seat in the cockpit of his father's (the defendant Nathan E. Lewis) aeroplane awaiting the arrival of the flying instructor, and in the meantime, endeavoring in co-operation with Moon, who was on the ground in front of the aeroplane, to start the motor so as to warm it up, and it was while thus engaged, the propeller of the aeroplane struck Moon on the head causing his death.
This suit is brought to recover damages for the pecuniary loss suffered by the widow and next of kin of said Vernie E. Moon, and the plaintiff, as administratrix ad prosequendum
of his estate, alleges that his death was caused by the negligent starting of the propellor blade by the defendant Donald Lewis.
Two expert witnesses were produced by the plaintiff, who testified as to the methods used in starting motors of aeroplanes. They testified that one method is the "compression" method, as follows: The pilot takes his seat in the cockpit of the plane and the mechanic or assistant by hand slowly turns the aeroplane propellor, which operation serves to draw some gasoline into the cylinders of the motor. At a certain point he feels resistance caused by compression and when he considers that the propellor blade is in the proper position, he steps back out of danger and then signals to the pilot with the word "clear." The procedure then requires the pilot to answer with the same signal, then to turn on the ignition switch and at the same time to crank the "booster" or generator. The other method, known as the "contact" method, is the same as the first up to the point where the mechanic or assistant puts the propellor on compression, whereupon he steps back and then signals to the pilot with the word "contact." It is then the duty of the pilot to answer with the same word, to turn on his ignition switch, whereupon the mechanic upon hearing the signal "contact" from the pilot, steps forward, places his hands on the propellor blade and pulls it downward. The "contact" method does not involve the use of the so-called booster.
The charge of negligence against the defendant Donald Lewis is that on two occasions he and Moon acting in concert attempted to start the motor by the "compression" method and this having failed, Moon thereupon determined to resort to the "contact" method and that while he had given Lewis the signal for the "contact" method, which required Moon to reach up and take hold of the propellor blade, while he was in the act of doing so, Lewis, instead of following the signal, negligently, and while Moon was in a position of danger, resorted again without warning to the "compression" method and succeeded in starting the motor causing the propellor to turn and strike Moon as he was reaching for it.
Unfortunately for the plaintiff, her proofs failed to establish the ...