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May 25, 1967

Patricia Meryl GATENBY and Percy Evans, Administrators of the Estate of Ian Alexander Gatenby, Deceased and May Thora Mole, Executrix of the Estate of John Henry Mole, Deceased, Plaintiffs,
ALTOONA AVIATION CORPORATION and Paul Peterson, Defendants

The opinion of the court was delivered by: WEBER

 This case involves an action for the death of two passengers for hire in an air-taxi plane owned and operated by defendants out of Peterson Field, located about ten miles northeast of Altoona, Pennsylvania, on the main highway between Altoona, Pa., and Tyrone, Pa. On December 8, 1963, the pilot of defendants' plane took off from Peterson Field at about 1 p.m. to pick up two passengers at the Washington, D.C. airport. At about 1:26 p.m., the pilot received a weather briefing from the Phillipsburg, Pa. flight service station while enroute to Washington, D.C. Phillipsburg is the closest weather reporting station to Peterson Field being located about twenty-three miles northwest. The weather report showed a cold front moving on a north-south line from Eastern Ohio into Western Pennsylvania at about twenty knots per hour. At Washington, D.C. at 2:55 p.m., the pilot picked up his two passengers to transport them to University Park, Pennsylvania. The pilot departed Washington, D.C., without a further weather briefing but while enroute over Frederick, Maryland at 3:12 p.m., received a weather briefing from the pilot-to-forecaster service that informed him of near minimum visibility conditions for FAA Visual Flight Regulations *fn1" along the line of his flight, and of turbulence and moderate icing conditions enroute throughout the line of his flight. At 3:17 p.m., a special weather broadcast from the Phillipsburg station indicated less than visual flight regulation conditions in the area of his home field. The pilot could have heard this report with his equipment had he been tuned to that station or could have received it at any time on request. This report was repeated at the regular broadcast time of 3:45 p.m., by all weather stations along his route.

 The pilot was unable to land at University Park Pennsylvania, because the field was closed by adverse weather conditions that prevented landing under Visual Flight Regulations. University Park is approximately twenty-eight to thirty miles southeast of Phillipsburg. At about 3:50 p.m., the pilot contacted his employer at Peterson Field advising him that he could not land at University Park and was returning with his passengers to Peterson Field. The compass course from University Park to Peterson Field was approximately 226 degrees (southwest). The pilot reported that he was over Port Matilda, Pa., which is approximately 270 degrees (due west) of University Park and about twelve miles distant. At that time the ceiling was about 800-1000 feet at Peterson Field. At 3:59 p.m., the plane crashed into the side of a mountain in a heavy snow storm with ceiling and visibility zero. The plane crashed at an altitude of twenty-six hundred feet, 150 feet below the summit of the mountain. The site of the crash was Bald Eagle Mountain, about ten miles southwest of Phillipsburg and about fifteen miles northeast of Peterson Field. The site of the crash is 270 degrees (due west) from University Park. At the time of the crash the plane was in level sustained flight, cruise condition.

 The plane was not equipped at the time for Instrument Flying Regulations under the applicable Federal Aviation Agency Rules. It was not multi-engine with dual controls, it had no co-pilot. It is undisputed that the plane could not legally operate under Instrument Flying Regulations. The evidence of the weather conditions at University Park, Phillipsburg, Pa., and the Peterson Field showed that less than minimum visibility conditions for Visual Flight Regulation operation prevailed at these three points of a roughly equilateral triangle in the area of the pilot's destination, since the conditions were less than those which permit VFR flight, a ceiling of 1,000 feet and visibility of one mile. These had prevailed at Phillipsburg since 3:17 p.m., at University Park at 3:50 p.m., and for sometime prior thereto, and at Peterson Field at 3:55 p.m., and at Bald Eagle Mountain, within the area of the triangle, at the time of the crash. Since the pilot could not continue his flight under VFR conditions the pilot was attempting instrument flight contrary to the IFR provisions.

 The plaintiffs allege negligence by reason of the violation of several applicable FAA regulations and by reason of the violation of the "highest standard of care" owed by a common carrier to its passengers. The violation of both the FAA regulations and the "highest standard of care" was established by an almost overwhelming preponderance of the evidence. The jury returned a verdict for the defendants in the face of the great weight of evidence of liability. The defendants' evidence to dispute liability was fragmentary and speculative. It is the opinion of the court that the verdict of the jury for defendants is so contrary to the great weight of the evidence as to represent a capricious disregard of the evidence by a jury. We are firmly convinced that a new trial is demanded to prevent an unjust result. Fed.R. of Civ.P. 59[a]. Magee v. General Motors Corp., 213 F.2d 899 (3rd Cir. 1954). This is a principal not only of the controlling federal law which governs this action but of the law of Pennsylvania, the state of the forum in which the action was tried. Clewell v. Pummer, 388 Pa. 592, 131 A.2d 375 (1957). Eisert v. Jones, 408 Pa. 73, 182 A.2d 717 (1962); Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1964).

 We turn now to Plaintiffs' Motion for Judgment N.O.V. Does the record compel the Court to grant this motion despite our prior refusal to direct a verdict on liability for the plaintiff at the close of all testimony in this case? At the outset we believe that the consideration of plaintiffs' motion is to be decided by the Federal standards which provide that the Court shall direct a verdict in favor of the party having the burden of proof if the evidence established the facts in his favor so clearly that reasonable men could entertain no doubt with regard thereto. Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958); Herron v. Southern Pacific Co., 283 U.S. 91, 51 S. Ct. 383, 75 L. Ed. 857 (1931).

"The quantity and quality of proof necessary to make out a case for submission to a jury in a federal court are determined by the Seventh Amendment to the Constitution of the United States, the Federal Rules of Civil Procedure, and the decisions of the courts of the United States." (citations omitted) Isaacs v. American Petrofina, 368 F.2d 193 (5th Cir., 1966).

 Defendants dispute that the federal rule is applicable and argues for the application of a rule established in Pennsylvania that, "From time immemorial, it has been the province of the jury in trespass cases, where oral testimony is concerned, to pass upon the credibility of witnesses, even though uncontradicted by defendant witnesses or even though the defendant introduces no testimony at all." Dorn v. Leibowitz, 387 Pa. 335, 127 A.2d 734 (1956). Defendants further argue that plaintiffs' case depends in a large measure upon expert testimony to which relatively little weight should be given under Pennsylvania law.

 In examining the Dorn case, we are impressed as was the Pennsylvania Supreme Court with the fact that after directing the verdict for the plaintiff, the trial judge awarded a new trial. In sustaining that order the court considered briefly and without citation the rule as quoted above. The rule has been repeated in Williams v. H. E. Stoudt & Son, Inc., 404 Pa. 377, 172 A.2d 278 (1961) and in Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). However, all of these cases involved the testimony of the injured plaintiff in a trespass case, upon whose credibility the entire case rested. In the Williams case the matter was tried before a judge without jury and the issue was whether the judge was bound by plaintiff's uncontradicted testimony, or was free to disbelieve it. The opinion held that credibility was a matter for the trier of facts.

 The rule has been applied to extreme lengths in Pennsylvania. In Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951), a contract case, the court held:

"While it is true that however indisputable may be the proof resting on oral evidence, a trial judge may not assume its truth even though uncontradicted to the extent of directing a verdict or entering judgment n.o.v., yet this does not mean that a perverse or capricious verdict or one plainly against the weight of the evidence must be allowed to stand. The remedy is to grant a new trial, (citations omitted) and repeatedly if necessary."

 But this is not a rule of universal application in Pennsylvania. It is not so applied at the conclusion of plaintiff's evidence in cases where defendant moves to dismiss, it is not applied when the court determines that here is clear and unmistakable evidence of plaintiff's contributory negligence. Murphy v. Bernheim & Sons, 327 Pa. 285, 194 A. 194 (1937); Pewatts v. J. C. Penney Company, 356 F.2d 586 (3 Cir. 1966).

 It is not a rule of universal application. In Lonzer v. Lehigh Val. R. Co., 196 Pa. 610, 46 A. 937 (1900), the court held:

"But this rule is founded on common sense and knowledge of human nature, and must be limited by the same standards. When the testimony is not in itself improbable, is not at variance with any proved or admitted facts or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. * * * The verdict should have been set aside as in direct disregard of the evidence, and where that is the case the court ...

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