Appeal from order and judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1963, No. 1750, in case of Catherine K. Berkebile, Executrix v. Brantly Helicopter Corporation.
Laurence H. Eldredge, for appellant.
Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker & Rhoads, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Wright, P. J. would affirm on the opinion of Judge Chudoff.
[ 225 Pa. Super. Page 350]
This is an appeal from a judgment in favor of the appellee, Brantly Helicopter Corporation. Appellant cites numerous grounds for reversal, each of which will be discussed below.
On July 9, 1962, Cloyd G. Berkebile was killed when the Brantly B-2 helicopter he was piloting crashed near Franklin, Pennsylvania. Decedent's executrix brought a wrongful death and survival action against the manufacturer of the helicopter, Brantly Helicopter Corporation,
[ 225 Pa. Super. Page 351]
based on a theory of strict liability. The case was tried before a jury and a verdict was returned for the defendant. On appeal, this Court granted plaintiff a new trial.*fn1 In the second trial before the Honorable Earl Chudoff and a jury, the jury again returned a verdict for the defendant. From a denial of appellant's post-trial motions, this appeal has followed.
In January of 1962, Mr. Berkebile purchased a small helicopter from Brantly's distributor. There is no dispute that the helicopter was regularly checked and serviced during the six months from the date of purchase.
On July 9, 1962, Mr. Berkebile flew to Chess Lamberton Airport in Franklin and asked for 100 octane gasoline. Finding that fuel was unavailable, Mr. Berkebile took off in the direction of Oil City. Minutes later, when he was only two miles from the airport and while in climbing flight, a seven foot-long piece of one of the three rotor blades separated from the copter and flew off. The helicopter crashed, killing Mr. Berkebile.
Prior to the purchase of the helicopter, Mr. Berkebile had never flown a helicopter. Defendant's advertising brochure, which was primarily directed to the non-professional flier read: "The versatile B-2 is America's lowest priced helicopter designed specifically for
[ 225 Pa. Super. Page 352]
non-professional use. Tricky to operate? Not at all. Beginners and professionals alike agree that the Brantly is easy to fly with or without experience in conventional aircraft."
At the second trial, plaintiff sought recovery on the following theories: (1) that the design of the rotor system was such that in the event of emergency power failure in climbing flight the pilot had only one-third second to get into autorotation which was not enough time to enable a reasonable man to save his life; (2) the rotor blade was defective; (3) that defendant, in its advertising brochure, misrepresented the safety of the helicopter; (4) the defendant gave no adequate warnings of the need for instantaneous reaction in emergency power failure.
Defendant denying the existence of a defect, theorized that the blade fractured because of abnormal use brought about by greatly reduced rotor speed due to power failure from fuel exhaustion and failure of the decedent to push down the "collective pitch stick" in time to go into autorotation. Defendant further contended that there was sufficient time for the reasonable man to go into autorotation and that adequate warnings and instructions were supplied to do so.
Appellant contends that numerous errors were committed by the trial court in its evidentiary rulings and in its charge to the jury on the applicable law.
An examination of the trial court's charge discloses that the trial judge properly charged the jury on appellant's first two theories. Appellant sought to establish the existence of a defective condition in either the rotor blade or the emergency mechanism of the autorotational system. Charging directly from language in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) and its progeny, the trial court ably instructed the jury on ...