not occur on the flight; that plaintiff did not suffer any permanent injury and that, if plaintiff was injured, the injury was not proximately caused by an accident occurring during the flight.
Motions for a new trial require the exercise of discretion by the Court whose ". . . duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice P 59.08 at 59-160; Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 475 (3d Cir. 1970). The jury's verdict may be vitiated only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because it may have reached a different conclusion. To grant a motion for judgment n.o.v., the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict, Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970). Such a motion ". . . may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice P 50.07 at 2356.
I. Sufficiency of the Evidence.
A. Interrogatory No. 1 -- "Do you find that the plaintiff has proved by a preponderance of the evidence that there was an accident on board the aircraft on the portion of the KLM flight between Zurich and Amsterdam?"
The defendant claims that the verdict was contrary to the weight of the evidence. In summarizing the evidence and ruling on defendant's motions, we shall view the evidence and the inferences therefrom in a light most favorable to the plaintiff, the verdict winner. Thomas v. E. J. Korvette, supra.
Mr. DeMarines testified that he had no difficulty with pressure on the KLM flight from Philadelphia to Amsterdam on May 12, 1972 (N.T. 3-10). On the first leg of the return flight of May 20 (Zurich to Amsterdam), he suddenly felt an extreme, explosion-like pressure within his head (N.T. 3-11). He tried to form words, but could not speak, and he could hear nothing (N.T. 3-12). He described the sensation as a "stoned, completely numb feeling inside my head" (N.T. 3-14). At the same time, he saw two other passengers holding their ears in apparent pain and shaking their heads (N.T. 3-15). From Amsterdam to Philadelphia, the stoned, deep numbness feeling continued (N.T. 3-18), and that evening, on the way home, he experienced equilibrium loss -- a "floating feeling" -- which he testified continues to this day (N.T. 3-18-19).
Seven other passengers testified that they had experienced unusually severe problems with ear pain on this portion of the flight. Judge Louis Stefan, Common Pleas Court, Montgomery County, testified that he had severe pain in his ears during the entire flight, and that he noticed other passengers experiencing similar distress and complaining to the stewardesses (N.T. 2-3). Judge Stefan also testified that upon landing at Amsterdam he complained to the flight personnel who were in the cabin of the aircraft and told them that he had never felt anything like the ear problems which he had experienced on the flight and that the problem should be corrected before the next leg of the flight (N.T. 2-4, 2-20). Judge Stefan further testified that he had flown many times on pressurized aircraft (N.T. 2-16-17), and that the pain he experienced on the flight from Zurich to Amsterdam "was as severe as anything I have ever felt and beyond, much beyond, any pressure that I had ever experienced up to that time." (N.T. 2-5). He testified that his wife also complained to him that she was suffering severe earaches on the flight (N.T. 2-13-14). Other passengers gave similar testimony as to the pain they felt in their ears on this flight and of discussions among the passengers and reports to the flight crew concerning the problem.
Betty McWilliams, also a passenger, testified that she heard a flight steward tell a passenger to whom he was administering oxygen that "it was a wonder that other people hadn't complained because they were having a problem with the air pressure." (N.T. 1-85-86).
In defense, KLM called eight passengers on the flight.
They testified that they felt no pain or discomfort in their ears during the flight and that they did not hear any complaints by fellow passengers.
Defendant also called members of the flight crew who testified that there was no malfunction of the pressurization system and that nothing abnormal or unusual occurred on the flight in connection with the pressurization (N.T. 7-96, 8-22-26, 8-61, 8-122).
At trial, the parties agreed that the flight in question was an international flight with its destination in the United States, that plaintiffs were passengers on the flight, and that liability was governed by the terms of the Warsaw Convention,
as modified by the Montreal Agreement.
The Warsaw Convention is a treaty which applies to all international air transportation. Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392 U.S. 905, 20 L. Ed. 2d 1363, 88 S. Ct. 2053 (1968); Husserl v. Swiss Air Transport, Ltd., 351 F. Supp. 702, 705 (S.D. N.Y. 1972), aff'd 485 F.2d 1240 (2d Cir. 1973). The pertinent section which delineates a carrier's liability to a passenger is Article 17, which provides:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
As originally drafted, the Convention included the defenses of due care (Article 20(1)) and contributory negligence (Article 21) and set a limitation of liability to passengers of 125,000 francs, then the equivalent of $8,000 (Article 22(1)). Attempts to modify the low limit of liability led to a diplomatic conference at The Hague in 1955, at which time the Convention was amended to increase liability to the equivalent of $16,000. The United States, which was still dissatisfied with the low liability limitation, did not ratify The Hague Protocol. In November 1965, the United States exercised its power under Article 39 and denounced the Convention. On the eve of the effective date of the denunciation an interim agreement, known as the Montreal Agreement, was reached. This agreement provides for a limit of liability of $75,000, and also provides that the carrier shall not assert the defense of due care provided in Article 20(1).
The effect of Article 17 of the Convention as modified by the Montreal Agreement is to create liability regardless of fault or negligence on the part of the carrier;
McDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957). Plaintiff must prove only the happening of an "accident" and damages proximately caused. Husserl v. Swiss Air Transport Company, Ltd., 388 F. Supp. 1238, 1242, n. 4 (S.D. N.Y. 1975). The term "accident" is not defined by the Warsaw Convention. Neither party has called to our attention any reported case in which a plaintiff has claimed that an "accident" aboard the aircraft caused him to suffer ear damage.
One of the few cases which has discussed the meaning of an "accident" under the terms of the Warsaw Convention is McDonald v. Air Canada, supra. In the McDonald case plaintiff fell while standing in the baggage claim area of the terminal after a transatlantic flight and the Court held that such facts did not establish the happening of an accident within the terms of the Warsaw Convention. The Court said:
We see no basis for finding an accident, the first requirement for invocation of the Convention. Plaintiff did show that there were bags in her vicinity when she fell. However, even if the jury could have found that the bags were so close that when she fell she fell over one of them, it would be speculation to say that it was the bag which caused the fall. The area was well lighted. Plaintiff fell forward, and any bag in front of her must have been clearly evident. More important, she was not going anywhere, and there is no reason to think she was proceeding across the floor. The burden was on plaintiff to prove there was an accident. On the facts established it seems as reasonable to suppose that some internal condition was the cause of the fall as that the fall was the result of an accident. Id. at 1404-05.