Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Nathan Prashker was a young man, twenty-seven years old, unmarried, president of a family corporation, and the holder of a private pilot's license with some 215 hours flying time to his credit. On October 5, 1953 he undertook to fly from Allegheny County Airport near Pittsburgh to Cleveland, about 130 miles distant, with his cousin, a young man who was the father of several children.The visual flight plan filed with the Allegheny tower by Prashker called for a flight of approximately 42 minutes at 3,000 feet in a Beechcraft Bonanza, N 2168 D, recently acquired by the family corporation and in which Prashker had logged some forty hours of flying time.
At the take-off point the ceiling was estimated as 1800 feet, visibility four miles with light rain and haze. At the Greater Pittsburgh Airport conditions were better with broken clouds at 3,000 feet, overcast at 9,000 feet, visibility 12 miles with light rain.At Cleveland the ceiling was 15,000 feet with broken clouds below that, visibility 12 miles. There is no indication other than that he was in the habit of doing so that the weather conditions actually were checked by Nathan Prashker.
N 2168 D with Nathan Prashker at the controls departed Allegheny County Airport at 12:09 P.M. headed in a northwest by west direction with instructions to use caution in passing through the Greater Pittsburgh area which had a lot of instrument traffic. At 12:22 the pilot called Allegheny tower by radio, advising that he was over the City of Pittsburgh at 2,300 feet, was unable to maintain visual references, and that he was into and climbing up through the overcast. Immediately after the tower had advised that their last report for the tops of the overcast had been 3,800 feet, Pittsburgh tower, who apparently had heard Prashker report, called Allegheny tower to advise that a jet reported the cloud tops at 33,000 feet. This information was relayed to N 2168 D and the pilot was then asked for his approximate position. Prashker replied tensely that he didn't know. He was asked if he wanted to return to the airport and he nervously said that he did but that he didn't know his position and that he was incapable of flying on instruments.
Immediately Allegheny tower asked Pittsburgh tower to take a direction-finding reading on N 2168 D's transmissions and the pilot was told to give a short count. The tower heard him give the count and his identification. Pittsburgh tower then told them to have the pilot steer 325 degrees magnetic; this was immediately relayed to the pilot with the information that it would take him to Greater Pittsburgh Airport and that he should break out "in the vicinity of the river". The acknowledgement came as a broken and poor transmission. Allegheny tower repeated the steer and advised that the plane switch radio frequencies to work the Greater Pittsburgh Airport, but there was no acknowledgement. Repeated calls in the next minute were not answered.
Then at 12:27 an outside telephone call was received from a woman reporting that she and a neighbor had just seen and aircraft go behind a hill and that they thought it had crashed. Eight minutes later a man called to report that he and his co-workers had seen a wing fall off a plane and that the plane had crashed in Pangburn Hollow, near Elizabeth, Pennsylvania.
The crash scene was in a hilly, heavily wooded area near but out of sight of the Monongahela River, about 8 miles south-southeast of the Allegheny County Airport. The left wing was detached from the main body of wreckage and lay about 250 yards back along the flight path. The left stabilizer and part of the rudder were missing.
These actions were brought in Delaware against Beech Aircraft Corporation as the manufacturer of the Bonanza and against Atlantic Aviation Corporation as the seller of the aircraft, both of them Delaware corporations, by the executrix of the estate of Nathan Prashker and by Choice Embroidery and Lace Company, the Prashker family corporation, incorporated in New York, which owned the aircraft.*fn1 Jurisdiction is based on diversity of citizenship.
The claims against Atlantic are for breach of the implied warranty of merchantability and for negligent failure to warn of known dangerous propensities of the aircraft. Four allegations of negligence are made against Beech: (1) that the airplane was improperly designed; (2) that after receiving notice of the improper design it failed to make changes; (3) that there was a failure to include necessary safety devices; and (4) that there was a failure to warn of the prospective dangers. Additionally there is an allegation sounding in deceit that it was a conscious policy of Beech to disseminate false information as to the strength and safety of the Bonanza. There was further a claim against Beech for breach of warranty.
At the conclusion of a three week presentation of the plaintiffs' evidence, the trial court directed a verdict in favor of the defendants on the grounds that Nathan Prashker had incontrovertibly been contributorily negligent, thereby barring recovery on any claims of negligence, that there was no privity between Beech and the plaintiffs to sustain recovery on breach of warranty under the applicable law of Kansas, and that though there was an implied warranty of merchantability between Atlantic and the plaintiffs there could be no recovery thereon when the damage to the plaintiffs had been proximately caused by their own representative's contributory negligence.
It is a truism that on a motion by the defendant for a directed verdict at the close of the plaintiff's case, the evidence and all the inferences reasonably to be drawn therefrom must be viewed in the light most favorable to the plaintiff.
We consider first the matter of Nathan Prashker's contributory negligence. Because the harm occurred in Pennsylvania, that is the place of the alleged tort. The United States District Court of Delaware in a diversity action posing a conflict of laws question looks to the conflicts rule of Delaware to determine the law to be applied. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. Delaware follows the usual course of looking to the law of the place of the alleged tort to determine the substantive rights of the parties arising therefrom. Pack v. Beech Aircraft Co., Del.1957, 132 A.2d 54; Restatement, Conflict of Laws, § 384. Thus, the law of Pennsylvania was applied by the District Court and will be looked to by us.
The Civil Air Regulations, which were put into evidence in this case, prohibit flying under instrument conditions by a pilot without an instrument rating and without recent practice.*fn2 A pilot without instrument qualifications must adhere to the visual flight rules. These prohibit flying when visibility is less than three miles or when the ceiling is less than 1,000 feet. Additionally they require that a visibility of three miles be maintained at all times while in flight and that the plane approach clouds no closer than 2,000 feet horizontally, 500 vertically under, and 1,000 feet vertically over.*fn3 The Regulations do contain a provision, however, which permits departure from the other Regulations in ...