Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
The defendant appeals from a judgment in the Law Division of the Superior Court entered upon a verdict in favor of the plaintiff.
Defendant contends that the trial court did not properly submit to the jury the question of plaintiff's contributory negligence. Defendant further contends that the verdict was against the weight of the evidence.
Plaintiff's action is for damages arising out of personal injuries sustained by plaintiff, resulting from a collision between two airplanes on the ground at Caldwell-Wright Airport in Caldwell, Essex County, New Jersey, on March 28, 1945.
Plaintiff was an employee of the Wright Aeronautical Corporation, doing experimental test flying. On the date of the collision, plaintiff had received permission to use the runway "22" with the plane he was piloting, in order for him to make a take-off. Plaintiff at that time was operating a Vultee Aircraft.
Plaintiff took off, and, after a short time, decided to land again. He received permission from the control tower for
his proposed landing. After landing, he went to the far end of the runway and called the tower again for permission to taxi back and make another take-off, and that was granted.
While taxiing his plane down the runway, plaintiff made some "S-turns" in order to observe the field before him.
After plaintiff had proceeded half way down the field, the left wing of the plane he was in was torn off from contact with another airplane called a "P-47," operated by Sam C. Barnitt, a servant of defendant. The plane plaintiff was in burst into flames and plaintiff was injured thereby.
It is not denied that the plane plaintiff was piloting was camouflaged; that is, it was painted in such a manner as to make it blend with certain terrain. However, the runway upon which the plane was taxiing was black macadam.
The "P-47" operated by Barnitt was being given a test flight at 25,000 feet to determine whether the engine was functioning properly. Barnitt testified that prior to his take-off he had contact with the tower, but, just as he was taking off, he was not able to contact the tower. On reaching 25,000 feet, the engine was missing and backfiring and Barnitt decided to return to the field. He stated that when he reached 10,000 feet, he tried to contact the tower by radio but was unable to do so. He claims he tried to attract the attention of the tower but was unable. He, therefore, proceeded to make his landing. He testified that, although he looked to the ground, he did not see the Vultee aircraft.
Experts were introduced by defendant to testify as to the proper procedure for landing and ...