The opinion of the court was delivered by: WORTENDYKE
The two captioned cases involve common questions of law and fact and were therefore consolidated for trial. Jurisdiction of the action by each plaintiff against the United States of America is based upon 28 U.S.C. 1346(b) and 1402(b). The two main actions, therefore, were tried to the Court without a jury. Trial of the third-party action, in docket number 852-59, was severed. It involves a claim of the United States of America against Irwin W. Stratmore for contribution, contingent upon the establishment of liability in favor of the plaintiff Murray Stratmore in that action. Only the issue of liability was tried in each case.
This litigation arises out of the crash, on October 4, 1958, while attempting to land at Teterboro Airport in this District, of a privately owned, twin-engine, Piper Apache Model PA23 airplane, manufactured in 1955. The aircraft was operated by Irwin W. Stratmore, who was seriously injured, as was his invited passenger and brother, Murray Stratmore.
The day of the crash was a Saturday, the weather at the time was clear, the temperature approximately 65 degrees F., and the wind approximately 5 miles per hour, from the south. Weather conditions were such as to render Visual Flight Rules (14 C.F.R. 60.30-33) appropriate. Earlier that day that plaintiff, Irwin, testified that he had invited his brother, Murray, to accompany him upon a flight to Reading, Pennsylvania, for the purpose of consulting with someone there respecting the possible purchase of an article of equipment by Irwin for the company of which both he and his brother were officers and directors. Although at first demurring, Murray finally consented to accompany Irwin, and they took off from Teterboro Airport at approximately 12:30 p.m., Eastern Daylight Saving time. While flying in the direction of Reading, Pennsylvania, from Teterboro, New Jersey, Irwin made various tests of his radio communications systems, and, in the course thereof, and when he was in the vicinity of North Philadelphia, he learned from a news broadcast that a World Series baseball game was in progress. He says he decided to refrain from landing at Reading, and reversed his course to return to Teterboro, and explained that he felt that the person whom he planned to see in Reading would probably be in attendance at the baseball game, and therefore would not be available for the purpose of the proposed conference. When approximately two miles to the west of New Brunswick, New Jersey, on the return flight toward Teterboro, the left, or port, engine of the aircraft 'became rough.' The pilot inferred from this malfunctioning of the engine that ice had formed in the carburetor fuel jet. He therefore pulled out the knob activating the carburetor heater for that engine. This caused the engine to stop. He proceeded to 'feather' the left propeller, but did not attempt to restart the engine. Instead of attempting to land at either of the nearer airports, in the respective vicinities of New Brunswick and Linden, or at that located at Newark, New Jersey, he decided to proceed to his home airport at Teterboro. His speed in that direction was 110 miles per hour, with his right (and only operating) engine turning over at 2,400 rpms, at 75% Of its power, under 25 inches of manifold pressure. He was flying at an altitude of 2,500 feet. He says that when he had reached a point approximately three miles south of Newark Airport, he radioed the Teterboro tower, explained the condition of his aircraft, asked for landing instructions, was cleared for runway 1 or runway 6, and advised that the winds were then calm. He elected to use runway 6,
so advised the tower, and was cleared for that runway. He informed the tower that he had one passenger aboard and that his left engine was 'out'. He testified that he called the tower again when his plane was over the outer marker of Teterboro Airport (4.6 statute miles from the beginning of runway 6), and was advised that the airport had been cleared of all traffic and that emergency equipment was standing by. At that time he was at an altitude of 2,500 feet. The pilot says that the tower called him again when his plane was between the outer and the middle marker, and informed him that his landing gear was not down. To this the pilot says he replied that he was aware of the position of his gear because he was then in the course of pumping it down.
He fixes his position at 0.575 statute miles from the runway when this conversation took place. When over the runway threshold lights he was aware that his gear was down and locked (according to the cockpit indicators);
he had also put his flaps down, lowered the nose of the aircraft and partially closed his throttle. His stated altitude was then between 125 and 150 feet. He testified that he had trimmed his elevators to compensate for the retardation of his throttle, and rudder tab had been retrimmed. His propeller was set at full pitch; his speed at 90 miles per hour. The green gear lights on the control pedestal were lighted, the amber light was out. The manual gear pump handle was in a neutral position, and no light flashed at the end of that handle (as it would had the gear been less than completely extended). He was wholly committed to land at that time.
He insists however, that, when he was at that point, and under those conditions in his descent, the tower again advised him that his flaps were down but his gear was not. He says that he told the tower it was mistaken, but that the tower reiterated its statement of the gear position, and told him to 'go around.' He says that he then advanced his throttle to full power, spun his rudder trim tab to compensate for the increased thrust of his single right engine, and elevated the nose of the aircraft in an effort to 'climb out.' At that point he had progressed over the center line of the assigned runway for some 2,500 of its 5,000 feet. That runway is intersected by a taxi-way extending in a southeasterly direction from the control tower. It was at or slightly to the northeast of that intersection with the taxi-way, on runway 6, that the aircraft left the course of its landing descent over the center line of the runway, and entered into the left turn, in the course of which it crashed. The point at which the aircraft left its proper course over the runway and performed the sudden turn to the left took place directly in front of the control tower and within the unobstructed view of the tower personnel. Although he was then too near the ground to permit a turn, he nevertheless attempted to follow through with such a maneuver to the left when the plane started to pull in that direction of its own volition. He brought up the nose of the aircraft, which caused it to stall and drop off toward the heavy left wing, striking the ground and spinning into an angle of 90 degrees.
The pilot testified: 'The first thing I did was apply full power (to the single operating right engine). The next thing I did was spin the trim tab. I hit the two handles and then I started to pump like mad, and, of course, this is what happened, you see, I tried to keep the airplane flat first to get a little air speed, and then I commenced to put my nose up to get some climb on it. That is when it started to drift to the left of the runway * * * it had gotten to a point where it had turned into -- the good engine on my right had overridden the rudder to such a degree that I knew there was no chance of climbing out. The drag was my nemesis. * * * I had one of two choices, retract my power and land straight forward, or try to make a turn into that dead engine since the angle was already established, and that is what I did. * * * Since the airplane had started to make * * * a left turn on its own I figured my angle was already established, and I only had a choice of landing straight forward or to the left, because if I had to go to the right I would have to go down more than 180 degrees, you see * * * so what I actually did was I left full power on and put my yoke, that is my wheel full forward, and held the turn rudder and elevator * * * I put that nose down as far as it would go and that is what I am implying here. I can remember touching it up against the stop. I've always been taught that the one thing you want to do is to keep this nose down. * * * However, I wasn't able to complete the full 180 degrees before the ground came up, or I approached the ground. I would say it was in the neighborhood of an angle about * * * possibly 165 or 170 degrees rather than 180. As the ground came up I pulled back on my yoke. I pulled back on my throttle at the same time, and due to the excessive speed that was necessary to make this turn, you see, the airplane ballooned. * * *' The pilot explained that he had to pull up the nose of the aircraft faster than required for a normal landing, and this caused the aircraft to 'ballon' and stall 'at a higher point than at a lower point and it dropped flat on its belly, heavy on the left side, and spun about 90 degrees * * *.'
On pretrial deposition, Irwin Stratmore (the pilot) testified that he had never attempted to go around on one engine, with landing gear and flaps down, but that he had frequently practiced go-arounds from simulated landings, with gear and flaps up. When, as he claims, the pilot received the directive from the tower to go-around, the aircraft had traversed only half of the length of the runway. At that point, the pilot testified (in this pretrial deposition) that he applied full throttle, retrimmed his rudder, brought his flaps and gear handle into the up position, and commenced pumping. He was then at an altitude of about 100 feet, traveling at a speed of 90 miles an hour. The added speed, coupled with the elevation of the aircraft's nose for the desired rate of climb, caused the aircraft to 'balloon' momentarily, and to turn to the left toward the dead engine. The pilot helped this left turn by using his rudder and ailerons. In other words, he voluntarily banked and turned left, electing to take his chances on the calm wind, in the face of his recognized option to retard the good engine and land straight forward. He still had about 2,500 feet of runway in which to land straight ahead, and his speed of 90 miles per hour (132 feet per second) was the proper gliding speed for landing purposes, according to the instructions contained in the Manual. At gross weight, with full flaps and no wind on the hard runway which the airport provided, his minimum landing roll would have been 670 feet under standard conditions.
It is the contention of the pilot that, although all of the mechanical and advisory devices with which the plane was equipped indicated that his landing gear was fully extended and locked when he was at a point over the runway from which he could have descended to a safe landing thereon, the radio advices from the tower caused him to doubt the reliability of the plane's equipment (which had never before misled him), and induced him to attempt to 'climb out' of the landing pattern to which he had committed himself.
Control of flight operations at the airport was being exercised by personnel in the control tower who were concededly employees of the United States, acting within the scope of their employment. Each of the plaintiffs charges that the tower personnel were negligent in their observation of the approach of, and in the directions which were given to the pilot of the aircraft in his attempt to land with one of the two engines inoperative. The burden rests upon the plaintiffs of proving, by a preponderance of the evidence, that such alleged negligence was the proximate cause of the crash. Upon sustaining such a burden, the liability of the United States would exist in the same manner and to the same extent as that of a private citizen under like circumstances.
It has been held that if a Government control towerman is guilty of some negligent act or omission in doing his work, the Government is liable for resulting injury in the same manner and for the same reason that it is liable for injury done by the driver of a mail truck who, in the exercise of his discretion as to how to drive, negligently runs through a red traffic light. Eastern Airlines v. Union Trust Company, 1955, 95 U.S.App.D.C. 189, 221 F.2d 62. In the cited case the negligence charged and proven against the tower personnel consisted in failure to issue timely warning to one of the planes that the other was also on final approach, after the tower had cleared both planes for the same runway at approximately the same time.
Applying this principle it appears that two critical factual issues are presented: (1) did the tower induce the pilot to believe that his gear was not down, and direct the pilot to 'go around' when it should have been obvious to the tower personnel that it would be hazardous, if not impossible, for the pilot to attempt to obey such a directive; and (2) if so, were the acts or omissions of the tower personnel proximately causal of the crash of the aircraft?
A witness, Del Campo, in a standing plane, awaiting permission to take off, first observed the Stratmore aircraft about three-quarters of a mile away from the airport, at an altitude of about 500 to 600 feet, at which point he further observed that its landing gear was being lowered. (His vantage point was on a 'waiting' runway, close to the threshold of runway 6, some 2,500 or more feet closer to the approaching craft than was the tower.) This witness, whose radio was tuned to the tower frequency, corroborates Irwin Stratmore's version of the tower's first two admonitions to the Apache. He heard the tower advise the aircraft, when it was about a half-mile out, that its wheels had not been lowered, and that when it was over the runway threshold, he heard the tower warn the aircraft that its flaps were down but that its landing gear was not. At this point the descending airplane was observed by the witness to be at an altitude of between 100 and 150 feet, with its landing gear fully extended and its flaps at 15 degrees. It descended 25 feet more, and traveled over and along the center line of runway 6, maintaining constant altitude. This witness adds: 'Then there was a transmission from the tower stating he may use any runway at his discretion, or the grass. Then I don't recall how it was injected (sic), but he was told to go around. This might have been all part of one conversation back and forth. This is why it is so hard. I have only heard one side of this conversation. * * * About halfway, or not quite halfway, three-quarters of the way down the runway the pilot of the airplane executed a left-hand turn * * * and the airplane climbed briefly. He executed his first left turn, he was all right. It was more like 180. It sort of went into a climbing turn, it appeared to stall out and drop flat, and more or less at an angle. Then it leveled off a little bit above the ground and hit flat on the ground.' It was the expressed opinion of this witness that Stratmore 'could have executed a landing on that runway any time he chose to do so up until the time he made the turn. He still had a half a runway, which I would say would be well over 2,500 feet.'
A passenger in Del Campo's standing plane, Reingold, testified that he observed the Stratmore Apache when it was approximately 400 feet south of the threshold of runway 6, and heard the tower advise the pilot that his gear was not down. As the aircraft passed the location of this standing plane, which was on the westerly taxi-way south of the tower, the front wheels of the landing gear had been lowered. This witness also said that he heard a second transmission from the tower to the approaching plane, advising that the gear was not down. He did not hear any communication from the aircraft itself, but as it continued past the center taxiway, the witness says that the tower advised the pilot to 'use any runway * * * discretion,' and, following the latter transmission, the witness testified 'the plane surged ahead and raised up on its left wing, the right wing went up and made a 180 and crash landed.'
Another witness for the plaintiffs, Lytle, who was waiting on foot, to take photographs from the ground of flights using the active runway, and who is a commercial pilot and flight instructor with a twin-engine rating and over 6,000 hours of flight time, testified that the aircraft appeared to make an ideal approach, but was late in getting its flaps and gear down. As the plane crossed the runway threshold, he noted that its 'landing gear and flaps were either down or coming down.' He photographed the aircraft as it flew past his position, as well as after it had crashed, and these prints are in evidence. However, they are unclear with respect to the position of the gear and flaps as it flew by at 100 to 150 feet elevation. (See footnote 5, infra.) He heard power applied to the right engine; the plane continued in level flight, and then started a 'fairly steep climb-out, * * * straight ahead towards Route 46' but before it 'reached the limits of the airport * * * a turn was started to the left while in the climb, * * * but since the rate of bank increased and reached and exceeded 30 degrees bank, I said to myself, 'He has lost it'.' This witness estimated the plane's speed over the airport at 110 miles per hour and expressed the opinion that Stratmore would have been able to set down the aircraft on the remaining length of runway 6 if he had trimmed his rudder.
Another witness, who was emerging from the Atlantic Aviation Corporation building, which adjoins the control tower, observed the Apache above a point 800 feet from the beginning of runway 6, at an altitude of 150 feet, in an apparently normal approach, with left propeller feathered, and gear and flaps down. When the plane reached a point (still 150 feet above) at the 'center intersection' it commenced to make a left turn, lost 50 feet of altitude, applied more power, tried to pull out, stalled in a left bank, slipped down to the left, hit the ground and spun around into an easterly direction. A brother of this witness, also an employee of Atlantic Aviation, generally corroborated him.
An airport operations agent, Felice, manning a radio-equipped emergency water truck, testified that he first observed the aircraft over the threshold of the runway, with its landing gear still up. This witness radioed to the tower from his truck, advising of the position of the landing gear. He then observed the gear commencing to descend, noting that the aircraft at that time was at an altitude of from 250 to 300 feet, and so informed the tower. At 125 to 150 feet elevation, the plane appeared to this witness to climb out of its ...