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Court of Appeal, Fourth District, Division 1, California.

Kandie NEWING et al., Plaintiffs and Respondents, v. Steven Eugene CHEATHAM, etc., Defendant and Appellant.

Civ. 12765.

Decided: October 22, 1974

Luce, Forward, Hamilton & Scripps, by C. Douglas Alford, James K. EcKmann and William M. Schindler, San Diego, for defendant and appellant. Ned Good, Los Angeles, for plaintiffs and respondents.


This is a wrongful death action brought by the widow and children of Richard Newing against the administrator of the estate of Harold Cheatham, the pilotowner of the private airplane in which Newing was riding when it crashed. The court directed a verdict in favor of plaintiffs on the issue of liability on the ground res ipsa loquitur applied as a matter of law; the jury then returned a verdict in favor of plaintiffs in the amount of $125,000.

On appeal defendant contends the court erred (1) in refusing to admit expert testimony as to the unreliability of the opinion of plaintiffs' expert witness, (2) in refusing to instruct on contributory negligence and assumption of risk, and (3) in directing the verdict on the issue of liability on the ground the three conditions necessary for the application of res ipsa loquitur were proven as a matter of law. No issue is raised as to the amount of damages awarded.


On Sunday October 25, 1970 at about 1:00 p. m. a Cessna 172 single-engine fourpassenger airplane departed from Brown Field in Chula Vista in clear weather with three men aboard: the owner-pilot, Harold Cheatham, and his two non-pilot passengers, Richard Newing and Ronald Bird. There was no evidence of any further communications from or of any landings by the plane. Monday afternoon the plane was spotted in steep terrain in Mexico about 13 miles east of Tijuana.

The search party found the three men dead. Richard Newing was in the rear seat. In the front, in the left and right seats respectively, were Cheatham and the other passenger, both smelling strongly of alcohol. Eight or nine empty beer cans were found immediately adjacent to the left door, some in and some out of the plane. Evidence presented at trial revealed the three men had been drinking draft beer in a National City tavern between 10:00 and 11:00 a. m. Sunday before their departure.

Observing the generally upright position of the aircraft, its virtually undamaged propeller, the position of the bodies and the rough terrain, the Commandante of the Tijuana Airport, Jorge Rojo, suspected the plane had run out of gas.

The Cessna 172 has a fuel capacity of 42 gallons, only 37 gallons of which are deemed to be usable. The fuel is carried in two 21-gallon wing tanks, from which it is carried to a fuel selector valve located between the two front seats; from there the fuel flows through a gas filter and into the carburetor. According to the manufacturer's manual, if the plane is operated on a lean fuel mixture at an altitude of 5,000 feet (which was the normal cruising altitude for the geographical area), the fuel will last 4 hours and 18 minutes.

The morning after the wreckage was located, Rojo returned to the site with Jesus Leon, a mechanic from the Tijuana Airport, to have the mechanic confirm his suspicion there was no gas in the plane. They noted the stopped, damaged aircraft clock indicated 5:18, which was four hours and 18 minutes after the takeoff. Rojo inspected the fuel tanks visually and saw no gas. Without leveling either the plane or the wing, he attempted to drain fuel from the tanks through drain plugs located in the bottom of each tank. No fuel came out. Rojo relied upon Leon to look at the engine, apparently because Mexican law required him to do so. Leon inspected the carburetor and found it dry. He did not dismantle it. The gasoline filter was also dry. Using a dipstick, Leon estimated the fuel in one tank measured 3/16″. When Rojo and Leon checked the ground around the plane, they found oil spilled from the broken engine but not a trace of fuel.

The mechanic returned to the crash site a few days later to make a further inspection but discovered the engine had been stolen and there were bullet holes in the gas tanks. This ended the investigation.

At trial Rojo was called as an expert witness by plaintiffs. Although he had received little formal training in accident investigation, he had conducted approximately 50 investigations for the Mexican government over a 15-year period. Over objection Rojo was permitted to state his opinion the probable cause of the crash was lack of fuel. He based his opinion on the observations he and Leon had made, as related above. In response to a question by the court, Rojo testified (through an interpreter) that even usable fuel would not have drained out due to the drooping position of the wings. On cross-examination Rojo conceded the condition of the propeller and the general position of the aircraft and its various parts would appear the same if the plane crashed because of engine malfunction or control malfunction as opposed to lack of fuel.

A second expert witness for plaintiffs was Michael Potter, a former TWA airline pilot who had spent 1200 hours operating single-engine aircraft, with 200 hours in a Cessna 172. He testified it is good pilot practice to maintain at least 45 minutes of reserve fuel and to fly high enough over the terrain so that in the event of a power failure the pilot can glide the aircraft to a safe landing. He said crashing as a result of running out of fuel is pilot error. Potter had conducted an experiment on a level Cessna 172 and had discovered 5/16″ fuel remained in the gas tanks after he emptied them by running the engine until it stopped. Based upon this experiment, his examination of the photographs of the wreckage, and the observations made by Rojo and Leon, Potter testified in his opinion the accident was caused by lack of fuel and lack of proper terrain clearance.

The expert witness called by the defense was Robert Rudich, a long-time air controller and specialist in cockpit recording devices who had authored manuals on aircraft investigations. Rudich had reviewed the cross-examination testimony of Rojo and Leon and had studied photographs taken at the accident scene. While Rudich had taken part in many crash investigations, his position generally had been related to cockpit recordings and editing final reports for technical accuracy. Because of his familiarity with aircrash investigation practices and procedures, he was permitted to testify concerning them.

Rudich described aircrash investigations as essentially a process of ‘ruling out’ causes through the use of good investigating practices. Such practices included investigation of the activities of the pilot and the passengers and a pathological examination of their remains; all the components of the aircraft must be examined in minute detail, including the power plant, flight controls and the hydraulic and electronic systems, some of the work beiing done in a shop or by the manufacturer. Where fuel starvation or exhaustion is suspected, good investigative practices require checking the entire course of the fuel from the tank to the pistons in the engine, making sure all the intervening parts are intact and unclogged.

Rudich was not asked, and he did not express, an opinion as to the cause of the crash involved here. The import of his testimony was that insufficient facts were developed to arrive at an accurate conclusion. However, the court refused to allow him to testify that in his opinion Rojo's conclusions that the crash was caused by fuel exhaustion was unreliable because of a failure to follow good investigative practices. He was permitted to describe an experiment he conducted on a detached Cessna 172 wing in which he tried to approximate the angle of the right-hand wing of the wrecked plane as shown in the photographs. He found he had to pour 7.5 gallons of fuel into the tank to bring the level to 3/16″ on a dipstick. If Rudich's approximations were correct and the angle correctly duplicated, the experiment, when related to Leon's similar measurement at the crash scene, would indicate there was usable fuel in the tank at the time of the crash.

In response to plaintiffs' motion for a directed verdict on the issue of liability, the trial court ruled: (1) the defense of assumption of the risk and contributory negligence were not available under the facts, (2) the doctrine of res ipsa loquitur applied as a matter of law, and (3) the presumption of negligence arising under the doctrine had not been rebutted. Accordingly, it directed a verdict on the issue of liability and instructed the jury on the subject of damages only. A verdict was returned in the amount of $125,000.


In considering the issues raised on appeal we are governed by the context in which the case reaches us. A court may direct a verdict only when there is no substantial conflict in the evidence. In ruling upon a motion for a directed verdict, a court may not weigh the evidence or judge the credibility of witnesses. The evidence favorable to the party against whom the motion is directed must be given its full legal effect. All reasonable inferences favorable to that party must be drawn, and conflicting evidence and inferences must be disregarded (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; 4 Witkin, Cal.Proc.2d, Trial, § 353, p. 3152).


Defendant administrator first contends the trial court erred in refusing Rudich's proffered opinion that Rojo's investigation of the crash was inadequate and that his conclusion it resulted from fuel exhaustion was unreliable. He argues the evidence demonstrates Rojo's opinion was based upon a woefully inadequate investigation during which he made no attempt to rule out possible alternative causes for the crash which were consistent with many [but not all] of his observations. Contrary to the trial court's finding, he contends Rudich was qualified to express an opinion on this subject.

Plaintiffs reply, ‘You don't have to check the stove and the refrigerator to see that the sink is empty’, an appealing retort although somewhat of an oversimplification. Plaintiffs further contend Rudich's opinion would have been cumulative and excludable under Evidence Code section 352 since, on cross-examination, defendant fully explored what Rojo could have checked out in his investigation, but did not. They further contend the evaluation of expert testimony is a function of argument, not more expert testimony.1

In the context in which the issue was framed in the trial court and is argued on appeal, we find no error in the trial court's ruling. The weight to be given an expert's opinion is a question of fact for the jury to determine (Evid.Code § 312), and not a matter for additional expert opinion. Rudich was asked directly to evaluate Rojo's opinion. The question was never put to him in a proper hypothetical context. Moreover, we see no prejudice. Rudich was permitted to testify as to the requirements for an adequate aircrash investigation, including one in which fuel exhaustion was suspected. Rojo and Leon were vigorously cross-examined. The shortcomings of their investigation, as Rudich viewed it, were brought to light. Had the matter been submitted for jury determination, defendant would not have been deprived of crucial testimony because his expert was not permitted to comment directly upon the truth, validity or reliability of the opinion expressed by plaintiffs' expert.


Defendant contends the evidence of drinking, alcohol, both before and during the flight, raised questions of fact for jury determination as to the defenses of contributory negligence and assumption of the risk. He argues a reasonable man would not have flown with a pilot who had been drinking shortly before takeoff, particularly when additional beer was carried aboard the plane. Reliance is placed upon automobile guest cases which have held the defenses available where the guest has had knowledge of the driver's drinking or has participated with him in the drinking activities (see e. g., Taylor v. Rosiak, 236 Cal.App.2d 68, 77–78, 45 Cal.Rptr. 759; Enos v. Montoya, 158 Cal.App.2d 394, 401, 322 P.2d 472).

In considering the motion for a directed verdict, the trial court ruled the defenses were not available because violations of federal safety regulations made the pilot fully responsible for the catastrophy irrespective of the conduct of the plaintiffs' decedent. To support the trial court's ruling plaintiffs cite numerous safety regulations which they claim the pilot violated together with authorities holding the defenses unavailable where such regulations have been violated. (4 Witkin, Sum.Cal. Law, 8th ed., Torts, § 687, pp. 2973–2974; Fonseca v. County of Orange, 28 Cal.App.3d 361, 367–371, 104 Cal.Rptr. 566.) Plaintiffs place special reliance upon Mittelman v. Seifert, 17 Cal.App.3d 51, 94 Cal.Rptr. 654, an airplane crash case in which the defenses of contributory negligence and assumption of the risk were held inapplicable despite evidence of the plaintiffs-passengers' participation with the pilot in drinking before takeoff. The cases are dissimilar. In Mittelman, the facts were far more aggravated, involving a sick, fatigued, drinking and uncertified pilot who took off from a remote airport at midnight in bad weather in undisputed and absolute violation of numerous federal safety regulations. Here, there was no direct or positive evidence the pilot violated federal safety regulations. There was evidence from which it could be inferred that such violations occurred, but whether such inferences should have been drawn was a question of fact for jury determination. Certainly, it cannot be said such violations were established as a matter of law.

Moreover, as we later point out, the evidence required a conditional res ipsa loquitur instruction. If negligence was presumed by the trier of fact from the application of that doctrine, and not from a violation of federal safety regulations, contributory negligence in the case, and should have been presented to the jury for decision under appropriate instructions. III. THE DIRECTED VERDICT ON LIABILITY, BASED ON RES IPSA LOQUITUR.

Under Evidence Code section 646, the doctrine of res ipsa loquitur creates a presumption which affects the burden of producing evidence. Where the evidence establishes the existence of the doctrine's historically accepted conditions, a presumption arises which requires a finding of negligence unless the adverse party comes forward with evidence sufficient to support a contrary finding. (Witkin, Cal.Evid.2d 1972 Supp. § 260A, p. 210.) In California the conditions for the application of the doctrine were enunciated in Ybarra v. Spangard, 25 Cal.2d 486, at page 489, 154 P.2d 687, at page 689:

“(1) [T]he accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”

Later these conditions were summed up in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, at page 446, 247 P.2d 344, at page 349:

‘[A]s a general rule, res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.’

In determining whether the required conditions for the application of the doctrine exist in connection with a particular occurrence, courts have relied upon common knowledge, the testimony of expert witnesses and the particular circumstances relating to the accident in each case, such as the extent of control exercised by the defendant, the plaintiff's own involvement, the likelihood of negligence of others, and whether the circumstances are such that the defendant is better able than the plaintiff to explain what occurred. (Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 446, 247 P.2d 344.)

Except in rare instances establishment of these conditions is a question of fact. Where the evidence is subject to different inferences, it is for the jury to determine whether each of the conditions has been proved (Roddiscraft, Inc. v. Skelton Logging Co., 212 Cal.App.2d 784, 793–794, 28 Cal.Rptr. 277).

Here, the trial judge ruled each of the required conditions for the application of the doctrine was established by the evidence as a matter of law. We are concerned primarily with the first condition in connection with which the trial judge stated:

‘. . . it is apparent that the doctrine of res ipsa loquitur has been applied broadly to accidents involving aircraft, that as a matter of law and as a matter of practice in the courts, and in the law, it is one of the situations in which the doctrine is readily applied, almost consistently applied, although there are some cases in which it is not.

‘In think the Court can take judicial notice of the state of air travel in this country, and the state of private air travel in this country, and the state of public expressions, known in the industry and in the public sphere, that air travel is reputed to be among the safest forms of travel, and that accidents seldom occur in this area in the absence of negligent or careless conduct of some sort on the part of the owner and/or operator of aircraft, or those who have control over, it. I think that—and then coupled with this is the fact that in this case we have the expert testimony which says precisely that, that accidents such as we are involved with here rarely happen in the absence of negligent conduct.

‘This Court is finding as a matter of law that the first condition for the application of the doctrine of res ipsa loquitur applies, that this is an accident of such nature as common knowledge; it is the expression of the law through the cases, and it is the testimony of the expert witness, the only expert witness on the subject we have heard, that not exclusively but that as a matter of broad general practice accidents in this area do not occur in the absence of negligent conduct on the part of the owner-operator, or such other person who has control of the aircraft.’

Common knowledge of the cause of airplane accidents (here we are concerned with a private airplane and not a common carrier) is not such that it can be said, as a matter of law, that they invariably occur as the result of negligence, or even that they seldom occur without it. Such a determination in a given case requires a balancing of probabilities based upon a consideration of common knowledge, expert testimony and all the circumstances developed by the proof. Where reasonable men may differ on the balance of probabilities as to the existence of any of the required conditions for the application of the doctrine, the question of whether an inference of negligence is to be drawn is for the jury (Seneris v. Haas, 45 Cal.2d 811, 827, 291 P.2d 915; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784, 797, 28 Cal.Rptr. 277).

While plaintiffs produced substantial evidence to support a finding the crash was caused by fuel exhaustion, the showing was not so conclusive that a determination could be made as a matter of law. Defendant's expert expressed no opinion as to the cause of the crash, but his testimony raised questions concerning the validity of the conclusions reached by the experts for the plaintiffs. If the jury accepted Rudich's testimony concerning the requirements for a reliable air crash investigation, or believed the results reached in his experiment with the Cessna 172 fuel tank were valid, it could have rejected those conclusions and found neither negligence nor the conditions necessary to raise the presumption of negligence under the doctrine of res ipsa loquitur had been established.

Rather than weighing the evidence and making such determinations himself, the trial judge should have instructed the jury if it found from the expert testimony, common knowledge and all the circumstances shown by the evidence that the accident was more probably than not the result of the pilot's negligence, it could infer negligence from the happening of the accident alone. (See Bardessono v. Michaels, 3 Cal.3d 780, 793, 91 Cal.Rptr. 760, 478 P.2d 480; BAJI Instruction Nos. 4.0 and 4.02.)

Failure to give such instructions together with the ruling directing a verdict for the plaintiffs on the issue of liability deprived defendant of his right to a jury determination on vital factual questions and require a reversal of the judgment.

The judgment is reversed.


1.  This contention relates to other issues raised on appeal and is contradictory. Query: If the reliability of Rojo's conclusion as to the cause of the accident was subject to argument under the evidence, should the court have directed a verdict? That ruling precluded any argument on the subject.

AULT, Associate Justice.

GERALD BROWN, P. J., and WHELAN, J., concur.

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