DZIURA v. CALIFORNIA AVIATION SERVICE INC (1969)

Horst W. Dziura appeals from a judgment entered ofter the jury returned a defense verdict. The action is for personal injuries received when appellant was struck and severely injured by the propeller of a light aircraft in which he had been receiving flight instruction. We affirm the judgment.

For several months before the accident, appellant had intermittently received instruction as a student pilot from respondent Rudolph, an instructor employed by respondent California Aviation Service, Inc. This instruction included both flight lessons and ground school, during which appellant received information regarding safety requirements around an airplane. Specifically he was warned about the danger inherent in propellers.

On the evening of the accident appellant took a one-hour flying lesson from Rudolph, in a plane equipped with dual controls. When appellant landed the plane at the conclusion of the lesson it was dark. Appellant taxied to the parking area, where there were a number of wheel chocks (wooden blocks) lying on the ground between the taxi lane and the parking area. Appellant stopped the plane and got out to move some chocks which obstructed access to the parking area; there was conflicting testimony as to whether appellant acted at Rudolph's direction or whether the two agreed upon this course of action. Rudolph knew that the chocks were scattered in the area in front of the airplane, but the nose of the airplane prevented him from seeing the ground for approximately 20 feet under and in front of the plane. When appellant left the airplane, Rudolph took charge of the controls; he gave appellant no specific instructions regarding the chocks. The engine continued idling.

Rudolph could see appellant out of the side of his eye. There were floodlights on a nearby hangar which Rudolph knew could make it difficult to see. When appellant left the airplane he first kicked a chock away from the left wheel; he then reached for a chock near the nose of the plane and was struck by the propeller, receiving serious injuries.

California Aviation Service instructors generally followed a rule that an engine should be stopped during parking maneuvers if a chock was in front of the propeller. Rudolph knew that appellant was ‘getting into a position of danger’ when he stepped out of the airplane. Rudolph explained that he had no expectation that appellant would move directly forward into the extremely dangerous area around the propeller. Rudolph thought that appellant had enough experience around airplanes to understand how dangerous a propeller could be.

Appellant contends that it was error to refuse an instruction¹ that a flight school is as a matter of law a common carrier. Although it is established that a commercial air flight operation may be a common carrier (see e. g., Smith v. O'Donnell (1932) 215 Cal.714, 12 P.2d 933 [sight-seeing flights]), there are no California cases considering the question of whether a flight school is a common carrier. Section 2100 of the Civil Code, which provides a general standard of care consistent with the re quested instruction² might appear to be applicable to private as well as common cariers for hire. But the ‘utmost care and diligence’ standard has not been applied to all carriers for hire. The provision in Civil Code section 2168 that a common carrier is one ‘who offers to the public to carry persons, property, or messages, * * *.’ (emphasis added) is taken by the cases as exempting private carriers from the higher standard of care. The standard of care referred to in the requested instruction is imposed only upon a carrier who undertakes to carry ‘for all persons indifferently’ and not upon a ‘private carrier’ who acts for another party only after entering into a special agreement to do so (Webb v. Boyle (1932) 125 Cal.App. 326, 327, 13 P.2d 785; also see Carpena v. County of Los Angeles (1960) 183 Cal.App.2d 541, 543–544, 7 Cal.Rptr. 889; Hopkins v. Yellow Cab Co. (1952) 114 Cal.App.2d 394, 398, 250 P.2d 330.)

We find no authority indicating that respondent California Aviation should be classified as a common carrier as a matter of law. In McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal.App.2d 489, 23 Cal.Rptr. 339, relied on by appellant, the carrier in question was a mule train; the only question considered was whether the mule train constituted a carrier at all. In none of the out-of-state cases cited by appellant was the common versus private carrier issue analyzed, evidently because the distinction is not as important in the jurisdictions involved as it is in California. Thus, although some foreign cases contain indications that the operator of a flight school owes the same duty of care to its students that a common carrier does to its passengers, they are not especially helpful in the present case (e. g., Furumizo v. United States (D.Hawaii, 1965) 245 F.Supp. 981; Lunsford v. Tucson Aviation Corp. (1952) 73 Ariz. 277, 240 P.2d 545; Kasanof v. Embry-Riddle Co. (1946) 157 Fla. 677, 26 So.2d 889; Lange v. Nelson-Ryan Flight Service, Inc. (1961) 259 Minn. 460, 108 N.W.2d 428; Linam v. Murphy (1950) 360 Mo. 1140, 232 S.W.2d 937). Moreover, many other cases are found in which only the duty of ordinary care was applied to the operators of a flight school (e. g., Clark v. Chrishop (1952) 72 Idaho, 340, 241 P.2d 171; Rogina v. Midwest Flying Service (1945) 325 Ill.App. 588, 60 N.E.2d 633; Snell v. Intercoastal Airways, Inc. (La.1964) 165 So.2d 878).

The evidence did not establish as a matter of law that respondent California Aviation was undertaking to carry ‘for all persons indifferently’ and hence was acting as a common carrier as a matter of law at the time of the accident. Respondent's status was thus a question of fact ‘primarily for the jury.’ (Brignoli v. Seaboard Transportation Co. (1947) 29 Cal.2d 782, 792, 178 P.2d 445 [truck transport]; People v. Duntley (1932) 217 Cal. 150, 17 P.2d 715.) ‘What constitutes a common or a private carrier is a question of law, but whether a carrier is actually serving as a private, rather than a common, carrier is a question of fact.’ (13 Am.Jur.2d, Carriers, § 8, p. 565.) See Arrow Aviation, Inc. v. Moore (8th Cir. 1959) 266 F.2d 488, 73 A.L.R.2d 337, in which the trial judge submitted to the jury for its determination the question of whether defendant air taxi service was a common or a private carrier.

The instruction offered by appellant did not present the issue of common carrier status as a question of fact for the jury, but rather directed the jury that respondent California Aviation was a common carrier as a matter of law. Where a party offers an otherwise correct absolute instruction where only a conditional instruction struction which requires prior resolution of a fact issue would be proper, the trial judge need not correct the offered instruction, and the offering party may not complain of error on appeal (Faulk v. Soberanes (1961) 56 Cal.2d 466, 470–471, 14 Cal.Rptr. 545, 363 P.2d 593 [res ipsa loquitur]). The instruction offered in this case by appellant was in absolute form where only a conditional instruction would have been proper; therefore it was not error to reject the offered instruction.

Appellant next correctly points out that the instruction on willful misconduct delivered by the court was defective in failing to state that contributory negligence is not generally a defense to a claim based upon willful misconduct. The instructions given do not conform to the principles recently restated by the Supreme Court in Williams v. Carr (1968) 68 Cal.2d 579, 68 Cal.Rptr. 305, 440 P.2d 505. But the failure correctly to explain the effect of willful misconduct was not prejudicial where the evidence would not have supported a verdict on that theory. Wanton or willful misconduct ‘implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ (Williams v. Carr, supra, at p. 584, 68 Cal.Rptr. at p. 309, 440 P.2d at p. 509.) It has also been defined as ‘the doing of an act with a positive, active and absolute disregard of the consequences.’ (Davis v. Nelson (1963) 221 Cal.App.2d 62, 66, 34 Cal.Rptr. 201, 203.) Such misconduct is a very serious breach of normal patterns of behavior: ‘We caution the trial bench and bar that cases warranting instruction on wilful or wanton misconduct will seldom arise. By its very definition, such misconduct is rare. * * * It should but rarely be resorted to by the trial courts.’ (Lovett v. Hitchcock (1961) 192 Cal.App.2d 806, 813, 14 Cal.Rptr. 117, 121; also see Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 52 Cal.Rptr. 817.)

In the present case the evidence shows that respondent Rudolph allowed or directed appellant to step out of the plane some six feet from the revolving propeller and that Rudolph knew that appellant would attempt to remove chocks from an area somewhere in front of the plane. While such conduct on the part of respondents could well have been considered negligent, the evidence also shows that appellant had been instructed regarding the danger inherent in a revolving propeller and that Rudolph expected appellant would remember such instruction and avoid the propeller. There is no evidence that Rudolph should have known that it was ‘highly probable’ that appellant would be struck by the propeller. In short, there was insufficient evidence to support any instructions on willful, wanton or reckless misconduct, and respondents were entitled to a directed verdict on this count of the complaint. Therefore the failure to give correct instructions on willful misconduct could not have been prejudicial to appellant.

It was not error to refuse an instruction on the doctrine of last clear chance where there was no evidence that respondent Rudolph had a chance to avoid the accident after appellant could no longer do so (Miller v. Western Pac. R.R. Co. (1962) 207 Cal.App.2d 581, 601, 24 Cal.Rptr. 785).

Appellant contends that the court committed reversible error in denying a motion for directed verdict on the issue of negligence. Assuming the validity of the doubtful proposition that there was no question of fact before the jury on the issue of respondents' negligence (compare Transport Clearings-Bay Area v. Simmonds (1964) 226 Cal.App.2d 405, 38 Cal.Rptr. 116), the denial of a motion for directed verdict is not cause for reversal of a judgment founded upon a general verdict which is supported by the evidence. Here there was substantial evidence of appellant's contributory negligence; hence the denial of a motion for directed verdict on the issue of respondent's negligence is not subject to review on appeal.

Finally, appellant complains of the giving of the often-criticized instruction on looking but not seeing³ (see, e. g., DeGeorge v. Crimmins (1967) 254 Cal.App.2d 544, 545–546, 62 Cal.Rptr. 394; Hom v. Clark (1963) 221 Cal.App.2d 622, 647–648, 35 Cal.Rptr. 11). This instruction does not state any rule of law; it could only be helpful to the jury if regarded as a form of comment on the evidence by the judge. The judge may deliver comments reasonably calculated to assist the jury in appreciating the significance of the evidence and resolving conflicts in it. (Cal.Const., art. VI, § 10.) Here the instruction could hardly have assisted the jury's evaluation of the evidence. It would have been better if it had not been given as there was some danger that it would be misunderstood, to appellant's detriment. But there was evidence that a propeller turning at idling speed is usually both visible and audible. The aircraft was resting in a lighted area. Appellant admitted that he misjudged the range of the moving propeller. This evidence suggests that appellant failed to see the full sweep of the dangerous propeller; therefore the expression complained of was potentially applicable on one view of the evidence and we cannot hold that there was prejudicial error (Hom v. Clark, supra, at p. 648, 35 Cal.Rptr. 11).

The judgment and order are affirmed.

FOOTNOTES

1.  Plaintiff's Proposed Instruction No. 10: ‘I instruct you that the defendant, California Aviation Service, was a carrier of persons for reward and therefore must use the utmost care and diligence for their safe carriage and must exercise to that end a reasonable degree of skill.‘Failure on the part of such carrier to meet the foregoing standard of conduct is negligence.’BAJI No. 204, p. 591: ‘Use when it has been established by admission or uncontradicted evidence that one party was a common carrier and the other a passenger for hire.’

2.  Civ.Code, § 2100: ‘A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.’

3.  Derived from BAJI No. 140.

CHRISTIAN, Associate Justice.

DEVINE, P. J., and RATTIGAN, J., concur.