Appeal, No. 33, March T., 1951, from order of Court of Common Pleas of Greene County, Sept. T., 1948, No. 154, in case of Carl M. Stewart et ux. and James W. Stewart, a minor v. Dennis J. Loughman. Order reversed.
W. Robert Thompson, with him G. Ashton Brownlee, Joseph C. Spriggs and Montgomery, Thompson & Baily, for appellants.
John I. Hook, Jr., with him Scott and Hook, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Lander and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from a final order of the court below refusing to take off a compulsory non-suit. The action was instituted by the minor plaintiff, acting by his father as his natural guardian, and by the father and mother in their own right to recover damages for personal injuries suffered by the minor through the alleged negligence of the defendant.
The injuries in suit were sustained by James W. Stewart, the minor plaintiff, when he stepped from the leading (front) edge of the wing, of an airplane and was struck by the revolving propeller. The plane was owned by Dennis J. Loughman, the defendant, who was the proprietor of a passenger and freight transport business which he conducted under the fictitious name of W.P.L.E. Air Transport. The plane was based at the Greene County airport near Waynesburg, Pennsylvania, and Harley E. McVay was employed by the defendant as its pilot. At the time of the accident, the plane was being operated by McVay as a common carrier for hire. The plaintiffs base their action on McVay's alleged negligence for which they sought to hold Loughman liable under the rule of respondeat superior.
The defendant assigned four reasons in support of his motion for a compulsory non-suit, viz., (1) that McVay was not acting within the scope of his employment at the time of the accident, (2) that the plaintiffs failed to establish negligence on the part of the defendant, (3) that there was no casual connection between any act or conduct of the defendant or his servant and the injuries to the passenger and (4) that the minor plaintiff was guilty of contributory negligence as a matter of law.
In entering the non-suit, the trial court relied solely on the fourth of the above-specified reasons as did also the court en banc in refusing to remove the non-suit. Nor need we now, in appraising the action of the lower court, consider more than the question of the minor plaintiff's alleged contributory negligence. The evidence in the case was sufficient to support a finding by the jury that, in taking the minor for a plane ride as a passenger for hire, McVay was performing a duty within the scope of his employment and that the flight was a normal one. As was observed by this court in Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 592, 12 A.2d 25, -- "It may be added that 'Since
the scope of the servant's employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant's employment': Simmons v. Pennsylvania R.R. Co., 199 Pa. 232, 238." The jury could also have justifiably found from the evidence that McVay was negligent in his management of the plane and that his negligence was the proximate cause of the injuries in suit. By statute in this State (Act of May 25, 1933, P.L. 1001, Art. IV, Sec. 406), "The liability of the owner or pilot of an aircraft carrying passengers, for injury or death to such passengers, shall be determined by the rules of law applicable to torts on the lands or waters of this Commonwealth arising our of similar relationships." And, it is well established that a land or water carrier for hire owes to his passenger "the highest degree of care and diligence" both in transporting him and in enabling him "to alight safely": Hughes v. Pittsburgh Transportation Co., 300 Pa. 55, 58, 150 A. 153. Or, as stated in Hager v. Philadelphia & Reading Railway Company, 261 Pa. 359, 362, 104 A. 599, -- "It is the duty of a common carrier of passengers to exercise the highest practical ...