Evening star., 1937-02-06
|SSET
AS2L0SE SU|TS|N
A|RL|NER INJURIES
Jury Denies Damages to
Victims of "PeriIs of
the Air."
PASSENGERS HURT AS
DOWNDRAFT DROPS SHIP
Trial Justice Cox Qualities Instruc-
tion by Calling Attention to
Need of Pilot Skill.

In a precedent-making decision,
thought to be the first Of its kind
in aviation, a District Court jury late
yesterday denied damages to two
plaintiffs severely injured In June,
1885, when they were thrown against
the cabin roof of a passenger plane
which struck an unexpected down.
draft and dropped precipitously about
300 feet.
The injured passengers were George
p. Kimmel, well-to-do local patent
lawyer, and Homer ]. Byrd, Illinois
State superintendent of the Depart
ment of Registration and Education.
Exploring an entirely new field Of
law, Trial Justice Joseph w. Cox
instructed the jurors that the
plaintiffs assumed the risks neces-
sarily incident to travelling in the air,
known as perils Of the air =" but
qualified this statement by adding
that such an assumption Of risk
exists only where the plane is being
flown with the hi hest degree of
skill and care commensurate with
practical operation ="
The freakish accident occurred on
q Pennsylvania Air Line plane bound
from Washington to Cleveland.
Testimony Conflicts.
Testimony during the trial de-
veloped that a few miles west OF
Harper's Ferry. the plane ran into a
light rain. At that point, evidence
offered by the plaintiffs and the de-
fendant airline differed. Kimmel,
Byrd and two other passengers testi-
fled that the light rain changed into
a downpour and it became apparent
that the plane had entered cloud.
The pilot and co-pilot said. how
ever, that the rain never was heavy.
Attorneys for the plaintiffs con-
tended that when the plane struck
bad weather the pilots should have
flashed a warning to the passengers
on the screen in the cabin directing
them to fasten their safety belts. This
was not done, the defense claiming
there was no indication that any dan
ger threatened.
Plane Drops Twice.
Both sides agreed that the ship sud-
denly hit strong downdraft Of air
which hurled it some 300 feet down.
ward. Kimmel and Byrd we're thrown
violently against the ceiling Of the
cabin and seriously injured. Then
came another but less violent drop.
The pilot, however. did not lose con-
troll and few out of the storm.
Because Of the injuries to the two
passengers, the plane put about and
returned to Washington. where both
Kimmel and Byrd were taken to Emer-
gency Hospital. Physicians there
found a vertebra in Kimmel's neck had
been fractured and two other neck
vertebrae severly dislocated. Byrd
suffered two fractured vertebrae in the
lower back and was in a plaster cast
for three months. Physicians testi-
fed that Kimmels neck is perma-
nently bent and that an operation is
not feasible to remedy the condition.
Each injured man filed suit for
100000 against the Pennsylvania
Airlines. The suits were defended by
an insurance company. however, which
was represented by Attorney Cornelius
H. Doherty.
No Precedents Offered.
It was said that the suit was the
first involving an airplane accident
that did not occur in taking of or
landing Attorneys for both sides had
no precedents to offer Justice Cox
to aid him in framing the legal
sues.
Experienced flyers testified for both
sides during the trial. Among them
was Clyde Pangborn, famous around
the-world pilot.
Remarks by the jurist during the
litigation indicated he was fearful Of
discouraging the growth Of CONNER
cial aviation.
"The law can't be oblivious that
this industry is in an experimental
SGdSc, lic tO1O VIC AaWyCAo AA oAAS
absence of the jury. ITO put an OBJ
stacle in its way might put an end
to progress. We must remember that
we are dealing with an infant indus
try whose field of operation is in an
element which is essentially danger
ous."
He instructed the Jury that "the
pilot of the defendants plane was
only required to exercise such care
and skill as are ordinarily possessed
by those experienced, skillful pilots
engaged in the same business or art,
and if he exercised such care and
skill in his operation Of the plane he
was not negligent, although the acci-
dent might have been avoided If he
hod orfar II, q different monnorn