and the right wing continued in a circle." He concluded from that observation that he was in no bank at the time it was made, but that the aircraft was yawing at the time. He was unable to recall for how long prior to the time when he made the observation he had been in level flight but concluded from the apparent jerky movement of the horizon during the yaw of 20 or 30 degrees that he "must have hit something when * * * [he] observed this to cause the jerking. It would not be jerking in the normal flight if the airplane did not hit an obstacle. It would be a smooth movement if we were airborne."
A survey sketch of Thun Field and the immediate vicinity, with the reconstructed flight path of the aircraft in approaching and executing its attempted misapproach to the runway superimposed thereon; a wreckage-distribution chart showing the respective locations of scattered portions of the aircraft; photographs of the wreckage and of the neighboring terrain in various directions and at various elevations; the plotted course of the aircraft from the commencement of its initial approach to the runway until it crashed from an altitude of 200 feet at a point a mile and a half northeast of the northerly threshold of the runway, have enabled the Court to reconstruct some of the events which transpired during the relevant period. Thun Field is located in a fairly level, spottily tree-covered terrain in open country generally unoccupied by buildings in excess of two stories in height. The field itself consists of a single runway extending in a northeasterly-southwesterly direction with a 40-foot-wide bituminous paved landing strip 3040 feet in actual length and an apron, hangars and related office structures along the westerly side of the field. To the north of the threshold are two trees 60 and 62 feet in height, and to the east a low tree-covered ridge which roughly parallels the landing strip and is separated therefrom by grass-covered, generally level terrain in excess of 50 feet in width. At the southerly end of the strip the ground surface drops abruptly from the level of the southerly overrun of the runway to a depth of 100 feet below. Over this declivity an airborne plane could continue in prolongation of the line of its flight longitudinally over the landing strip and the southerly overrun for an unobstructed distance to the south. An aircraft traveling longitudinally over the center line of the paved portion of the runway at an altitude of 50 feet above its surface could continue in a straight line at the same or at a gradually increasing altitude before changing direction for the purpose of executing a go-round to make a new approach to the northerly overrun of the runway. It appears obvious, however, from the evidence that the aircraft involved in this case, upon reaching a point midway of the length of the paved runway of the air strip, and while still maintaining an altitude of 50 feet or less above the same, executed a left turn of approximately 90 degrees into a northeasterly direction, climbed to an altitude of 200 feet, and while attempting to make another left turn through a similar arc, struck a tree or trees with its left wing and crashed in an open level area a mile and a half to the northeast of the northerly threshold of the airstrip.
It is conceded by the Government that McChord Rapcon, an agency of the defendant, misstated or inadequately disclosed to the plaintiff the characteristics and limitations of Thun Field for the landing thereon of the C-46 of which the plaintiff was in command. However the evidence is uncontradicted that the unsuitability of the airfield became or must have become obvious and apparent to the plaintiff before his aircraft had travelled over the actual length of the paved portion of the airstrip, and before it had made a touchdown thereon, and while it was maintaining sufficient flying speed to permit it to achieve adequate altitude to resume its flight to McChord 15 miles away, or to attempt to make a new approach to Thun Field from a sufficient altitude and distance above and to the north of its northerly threshold. The evidence fails to disclose the reason why the aircraft made its initial left turn off of the Thun airstrip, or what caused it to crash after it had successfully made the misapproach, had regained substantial altitude and travelled a distance of a mile and a half from the airfield where it crashed in the course of its second turn. Assuming that the McChord control misinformed the plaintiff respecting the availability or suitability of Thun Field as a place to set down the aircraft, I find no evidence that such misinformation was a proximate cause of the injuries of which complaint is made.
Plaintiff argues that a precedent for recovery of damages here is to be found in Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2 Cir. 1967) cert. den. United States v. Ingham, 389 U.S. 931, 88 S. Ct. 295, 19 L. Ed. 2d 292. However, I find the two cases distinguishable factually. In Ingham Eastern's passenger airliner crashed at Kennedy International Airport while attempting to land on a runway which was engulfed in swirling ground fog. The liability asserted against Eastern by the plaintiff passenger was predicated upon the pilot's alleged failure to exercise due care in operating the aircraft and that this negligence was one of the causes of the collision. The Government was joined as a defendant under the Federal Tort Claims Act "on the claim that poor visibility was a factor in the crash and that a substantial contributing and concurrent cause of the accident was the negligence of the Air Traffic Controllers and the United States Weather Bureau Observer in failing to provide adequate and up-to-date weather information." Eastern's negligence was found to consist in its execution of a "misapproach maneuver" in a negligent manner. The Government's liability was predicated upon the Controller's failure to report the change in visibility in the landing area from one mile to three quarters of a mile which was at variance with the provisions of § 265.2 of the Air Traffic Control Procedures Manual of the FAA. In Ingham the Government argued that the failure of its Controller to comply with § 265.2 of the Manual was not the proximate cause of the accident. With this contention the Court of Appeals disagreed and held that in the circumstances of the case the failure of the Controller to inform the aircraft that visibility had dropped to three quarters of a mile, only slightly above the aircraft's minimum, was a proximate and concurrent cause of the accident. Moreover, in Ingham it was pointed out that if the crew of the aircraft had been notified of the changing weather conditions, the pilot might have decided to divert to another airport rather than to attempt an ILS landing at the airport in question, or the crew might have maneuvered the plane differently and could have been ready and able at an earlier time to execute a missed approach. In the case at bar it should be recalled that the facilities at McChord had been alerted for the return of the aircraft to that Base, and the plaintiff had decided to proceed accordingly. Rapcon's information that Thun Field was in the vicinity, even though it overstated the length of that field's runway, left to the plaintiff the choice of deciding between the two airports, despite the obviousness of the greater element of safety in choosing to return to McChord.
As was stated in United States v. Schultetus, 277 F.2d 322, at p. 325, 86 A.L.R.2d 375 (5 Cir. 1960):
"Liability growing out of the operation of aircraft is to be determined by the ordinary rules of negligence and due care. * * *. The applicable law, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), is that of Texas. The well-settled negligence rule in Texas is that 'The ability to have foreseen and prevented the harm is determinative of responsibility.' * * * But, * * * '* * * it is not required that the particular accident complained of should have been foreseen. All that is required is "that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.'"
If, as plaintiff here contends, McChord Rapcon was negligent in misstating the length of the Thun Field runway, such misstatement would not establish legal liability on the part of the defendant. Such liability could only be found if the negligence complained of was a proximate cause of the injuries, i.e., "a cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which it would not have occurred." Wenninger v. United States, 234 F. Supp. 499 (D.C.Del.1964) aff'd 352 F.2d 523 (3 Cir. 1965); 38 Am.Jur., Negligence, § 50, p. 695.
The first intimation received by the McChord Rapcon was a communication from the aircraft at 0219:50 that it desired to return to McChord from which it had so recently taken off. Rapcon thereupon directed the aircraft to continue its left turn heading 260 which would be the radar vector for a precision approach to runway 16 at McChord and to maintain 3000 altitude. At 0220:29 Rapcon inquired respecting the aircraft's difficulty and was informed that its left engine had been feathered. The aircraft reported at 0222:05 "we've got it under control" but fourteen seconds later reported "its going back into flat pitch again". Upon ascertaining that the aircraft, then 9 miles northeast of McChord, was flying in VFR conditions Rapcon informed the aircraft that it was exactly 5 miles north of the runway at Thun Field and in compliance with the request from the aircraft was given a radar vector for Thun. At 0223:50 Rapcon volunteered the information that the length of the Thun runway was 5300 feet and to turn right heading 151 when the aircraft was 3 miles north of Thun. Thereupon plaintiff apparently determined to attempt to land the aircraft at Thun but upon ascertaining by visual inspection that the runway there was of insufficient length to land the aircraft and that his approach to the runway was at too high an altitude to put down the aircraft successfully, executed a misapproach by turning to the left in a climbing turn, cleared the tops of a row or clump of trees to the east of the runway and after flying in a northeasterly direction was suddenly confronted with a repetition of a runaway left propeller, lost altitude and crashed apparently in the course of executing another left turn. The continuity of the chain of alleged causation between Rapcon's misinformation respecting the length of the runway and the crash of the aircraft was broken by a series of events in no way chargeable to that misinformation. The first intervening event was the discovery by the plaintiff before the aircraft had traversed its actual length that the runway was too short to permit the actual landing of the aircraft thereon. Having discovered this situation plaintiff decided to go around and indeed was successful in changing the aircraft's course by at least 90 degrees and in climbing over the obstruction created by trees on the new course by about 20 feet to spare. Whatever inconvenience may have resulted from the misinformation regarding the length of the runway inflicted no damage upon the plaintiff whose flying skill enabled him to avoid a collision with the trees over which he had safely passed. There was no evidence that upon the completion of this maneuver of avoidance the course of the aircraft's flight was out of the control of its pilot. Indeed after clearing the trees the aircraft completed the reversal of its course and proceeded to gain altitude over a distance of a mile and a half. At the end of that distance for some reason and in some manner the course of the aircraft again turned sharply to the left and crashed. Whether the immediate cause of the crash was another runaway propeller or an explosion or too steep a banking turn too near the ground with wingtip contact with a ground obstruction is neither disclosed by nor to be inferred from the evidence in the case. From 0224:33 when Rapcon observed that the aircraft was a mile north of Thun Airport until its position at one and one half mile northeast of the runway was observed on the radar screen Rapcon did nothing to control or influence the handling of the aircraft which was in the exclusive control and the primary responsibility of the plaintiff as pilot. Somlo v. United States, 274 F. Supp. 827 (D.C.Ill.1967) and cases cited.
The single independent eye witness whose testimony discloses the succession of events commencing with the aircraft's approach to Thun Field and its radical change in direction from a mid-point over the length of the paved airstrip, through an angle of 90 to 110 degrees, to a flight path extending to a point a mile or a mile and a half to the northeast of the northerly threshold of the field, was Carl J. Thun, the son of the owner of the field and the holder of an aircraft pilot's license with 300 hours of flying time as of February 13, 1963 and 700 hours as of August 29, 1966 when he testified. The substance of his testimony was as follows: On February 16, 1963, just before dark in the evening, as he was standing on the ground in the vicinity of the field office on the westerly side of the paved airstrip he heard the sound of an airplane propeller running wild; but paid little attention to the sound until he heard it a second time three minutes later. He then observed an airplane coming in from the north about half a mile from the northerly end of the runway, which appeared to be coming in for a landing at a speed of approximately 115 miles per hour in a descending attitude from an altitude of 200 feet. The pilot of the aircraft appeared to be "lining himself up for the runway" and had descended to an altitude of about 20 feet above the northerly end of the runway. The pilot then suddenly increased his engine power and turned left apparently for the purpose of making a go-round. The left turn was made after the aircraft had traversed a distance of 200 feet over and above the center line of the paved portion of the runway. In making its turn, the aircraft changed direction from a southerly into an easterly course, passed over a line or clump of trees to the east of the runway with a clearance of about 20 feet and continued in a left hand turn into a northeasterly direction beyond the trees. When the aircraft had reached a point "half way round the turn" the witness again heard the sound of a runaway propeller. When the aircraft began its go round from the point over the airstrip it commenced a climb, and it was during the climbing turn that the propeller went wild again, the aircraft hit a tree on the ground and exploded, shooting flames 500 to 1000 feet in the sky. Having characterized the movements of the aircraft during the go round as erratic, the witness explained that "usually you don't do that on a go round. * * * To pull off short of the runway like that and go round * * *. Instead you go straight over, you know, instead of taking a straight course over the runway and gaining altitude, which is usually the procedure, well, he took and cut to the left over the trees, and it is erratic right there, in cutting over the trees." The witness identified the aircraft as a C-46 and testified that it had both its navigation lights as well as its landing lights on. The testimony of the same witness indicated that the paved portion of the runway was 3400 feet with a 1200 foot overrun at the north end and an 800 foot overrun at the south end and a width of 50 to 60 feet. There were trees to the north of the field and on its easterly side approximately 30 or 40 feet in height. The southerly overrun of the runway terminated in a drop off of 200 feet. The witness did not observe the position of the landing gear of the aircraft during the events to which he testified. Several air photographs taken of Thun Field and neighboring areas, including the fragments of the aircraft in the locations in which they were found after the crash were identified and explained by the witness.
A competent expert pilot familiar with the C-46 aircraft expressed the opinion that the conduct of the plaintiff in handling this aircraft in the vicinity of Thun Field constituted "very poor technique". The foregoing opinion is to be found in the direct testimony of Edward A. Cabler at page 1082 of the transcript evoked by the following hypothetical question:
"I want you to assume that in the C-46 weighing forty-seven thousand pounds with the left engine inoperative, the pilot executes a missed approach and in the following manner: That after reaching an altitude of approximately twenty to twenty-five feet at a distance of two hundred feet past the beginning of the hard surface of a runway, the aircraft continues at the altitude of twenty to twenty-five feet for a distance of approximately an additional fourteen or fifteen hundred feet, and thereafter the aircraft before reaching the end of the hard surface of the runway executed a climbing turn to the left at an angle of bank ranging from thirty to forty degrees, * * *."
The witness responded (p. 1083):
"I would say it's a very poor technique"; explaining that