Upon motion of counsel for the defendant for the removal of a juror, the court, in refusing the motion, immediately said: "I want to say to the members of the jury that I want you to disregard that evidence entirely. That has nothing to do with this case." After counsel expressed a desire to discuss the matter at side bar, a short recess was taken. Upon resuming the trial the court again said: "Members of the jury, as I said to you before we took a recess, I want you in the consideration of this case to disregard that statement made by the witness. That statement was highly improper. If he did have an accident it may have been this witness's fault, it may have been the fault of the field, I don't know, and you should not in any way consider it. It should have no bearing whatever in the deliberation and your consideration in this particular case, and I trust that when you get to the jury room you will erase this reference from your minds, because it would be very unfair to have that considered by any single juror in connection with this case."
The plaintiff seeks to justify the statement on the ground that it tended to show the character of the condition in question and cites as authority: District of Columbia v. Arms, 107 U.S. 519, 525, 2 S. Ct. 840, 27 L. Ed. 618; Ringelheim et al. v. Fidelity Trust Co. et al., 330 Pa. 69, 71, 198 A. 628; and Fisher v. Pomeroy's, Inc., 322 Pa. 389, 391, 185 A. 296. Although there is some force to this argument, I do not feel that the statement can be thus justified in this instance, because the mere fact of an accident in landing an airplane can raise no inference of a defect in the field when other causes are equally as probable. However, whether justifiable or unjustifiable the statement, when considered in connection with the court's instructions to the jury, did not warrant the withdrawal of a juror. See O'Malley v. Public Ledger Co., 257 Pa. 17, 20, 21, 101 A. 94.
The defendant made other motions for withdrawal of a juror at times when such were reasonably prompted. Counsel for the plaintiff, it seems to me, did at times ask questions that were unnecessary for an expeditious trial of this cause. But, in view of their nature and the way they were dealt with in instructions to the jury, it does not appear to me that the defendant was prejudiced. In other words, I do not feel that the jury was swayed by matters they were given to understand were outside the scope of their deliberations.
The defendant further objected to the court's refusal to rule out the opinion of the witness Ray relative to the question whether the defendant's field was a safe place to land. As declared by the defendant, Ray lacked technical training and could not claim familiarity with the laws relative to maintenance of airports. But he had flown over 11,000 hours during 22 years of flying in numerous types of planes, including that flown by the plaintiff. He also visited numerous air fields. Further, he selected, laid out, and supervised the preparation and operation of a number of air fields for an eastern airline. Therefore, I conclude that he was qualified to state an opinion, when acquainted with the nature of the defendant's field, as to whether the field was a safe place for planes to land.
The defendant also objects to the retention of that part of Ray's testimony relative to the wheel tracks. Here, as before, he was practically experienced but without theoretical training. I conclude that he was qualified to draw an inference from the fact that the wheels were out of line as the plane moved on the ground prior to reaching the dip in the field.
The defendant urges that counsel for the plaintiff argued improperly before the jury in alleging and commenting on the defendant's failure to run a plane over the allegedly defective part of the field after the accident, in order to ascertain the condition of the field. Defendant made no objection to the court but in justification did state that "there is no evidence in this case that we had any facilities for doing it." Whereupon the court added: "There is no evidence that there were any other planes." I do not see that this was prejudicial to the defendant.
The final contention is that a verdict should have been directed for the defendant because no standard of care was established. The court in its charge to the jury said:
"The owner of premises, such as the defendant here, who owned, operated and maintained a commercial landing field for airplanes, upon which persons like the plaintiff come by invitation, express or implied, owes a duty to such persons to maintain the premises in a reasonably safe condition for the contemplated use thereof, and the purposes for which the invitation was extended.
" The defendant owed a legal duty to the plaintiff to use reasonable care to keep the premises in a reasonably safe condition so that the Plaintiff in landing his aircraft would not be unreasonably exposed to any danger."
I think that this, together with other portions of the charge, was sufficient to guide the jury in their determination.
Finally, I note the provisions of Rule 61 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to the effect that a new trial shall not be granted unless its refusal is inconsistent with substantial justice.I am of the opinion that refusal is not inconsistent with substantial justice in this instance.
The motion is denied.
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