The opinion of the court was delivered by: Juergens, District Judge.
This suit was instituted by Evalenar Bright as administratrix
of the estate of Victor O. Bright, deceased, against United
States of America, pursuant to Section 1346(b), Title 28, United
States Code, and Sections 1 and 2 of Chapter 70 entitled
"Injuries," Illinois Revised Statutes, for the wrongful death of
her husband. She claims damages in the sum of $25,000.
The testimony of the witnesses at the trial was to the effect
that Victor O. Bright was killed on October 6, 1955, when a
canopy from a T-33 jet aircraft fell out of the sky and hit him
on the head. At the time of the accident Victor O. Bright was
working for the Baltimore & Ohio Railroad Company as a track
laborer and was killed while he and his fellow laborers were
sitting on the right-of-way eating lunch at a point approximately
one mile west of Ferrin, Clinton County, Illinois. At the time of
his death Victor O. Bright was 44 years of age. He left Evalenar
Bright, his widow; Orrin Billy Gene Bright, age 23; Dean Laverne
Bright, age 18; Deloris Jones, age 18; and Irene Fay Bright, age
13, his children and only heirs at
law, him surviving. Only his widow and Irene Fay Bright, age 13,
were living at home and dependent upon him for support. For about
three years prior to his death Victor O. Bright was earning
approximately $3,250 per year.
The jet airplane from which the canopy was released was piloted
by Lt. William F. Andrews who, on October 6, 1955, and while
acting within the scope of his employment, departed under written
orders from Webb Air Force Base, Big Springs, Texas, to fly to
Wright-Patterson Air Force Base near Mansfield Ohio, with
privilege to make refueling stops. He decided to stop at Scott
Air Force Base, Illinois, hereinafter called Scott, for
refueling. Prior to leaving Webb Air Force Base, Lt. Andrews
completed the Air Force pre-flight check and found the aircraft
to be in good flying condition. He was given a weather report
showing the weather to be clear from Webb Air Force Base to
Scott, and he was given a visual flight rules clearance. Upon his
arrival near Springfield, Missouri, which is about 180 nautical
miles by air from Scott (T. Page 69), he radioed to Scott and was
told the weather was changing there and that he couldn't continue
under visual flight rules. When about 5 minutes to 7 minutes
Southwest of Scott, he called their control, informed them of his
altitude, and "requested penetration at Scott". (T. Page 35). He
was cleared and told to descend to 20,000 feet and to continue in
by instruments. He checked his instruments then in preparation of
the let-down and continued the normal Air Force procedure for
high speed penetration. He was flying into the radio compass or
within a couple of points, with the radio slightly off to his
right and "I then flew for approximately 7 minutes." (T. Page
35.)
The second time he called Scott he was told it would be only 5
minutes until he started his descent and in approximately 2
minutes of the "original time" his instruments gave indication
that he was over the station at which time he asked if he could
begin his penetration, and with permission given, he used the
normal Air Force procedure for high speed penetration. (T. Page
36). He flew into darker clouds, his canopy iced over and "a
lightning bolt struck right in front of the nose of the aircraft
or alongside of it, the instruments began jumping, and I heard a
thump in and around the aircraft." (T. Page 36.)
Lt. Andrews further testified that he changed his flight plan
before he got to Springfield, Missouri, when he saw there was an
overcast condition; his visibility at that time was 100 miles at
30,000 feet and he was still proceeding toward Scott. At 30,000
feet he was cruising at 400 knots an hour. He further testified
that when he was from 5 minutes to 7 minutes Southwest of Scott
he received information by radio from Scott that there was a
storm about 70 miles Northeast of Scott; that the overcast which
he observed about 100 miles before arriving at Scott was coming
toward him. (T. Page 47.)
He further testified (T. Page 50) that he received no radio
indication that there was any thunderstorm over Scott and that
the only indication he received from Scott was that there was a
thunderstorm approximately 70 miles Northeast of the field, that
he flew in the overcast about 4 minutes or 5 minutes before he
came into the cloud which turned out to be a thunderstorm. He
further testified that he lost complete control of his aircraft
and that "the only thing to do was get out of the aircraft."
Major William F. Boutwell and Captain Thomas Dale Alexander, both
stationed at Scott, qualified as experts in the flying of
airplanes including the T-33, and both, in answer to a
hypothetical question, stated that under the conditions related,
Lt. Andrews should have continued his flight and that he only
conducted himself as any reasonable pilot would. Major Boutwell
and Captain Alexander are correct when they say that "any
reasonable pilot would have bailed out." But here Lt. Andrews had
not prepared himself for any eventuality when he entered the
overcast, he was taken by complete surprise and he lost
control of his airplane. Nowhere do they state that he acted as a
"reasonable pilot" when he went into the overcast unprepared.
Major Boutwell further testified that pilots have the right to
exercise their own judgment when they see a cloud ahead of them.
Captain Alexander testified that the pilot, after he sees a storm
cloud, has a discretion as to whether he wishes to go through the
storm cloud or around it and that in his opinion Lt. Andrews lost
control of his aircraft which could be caused by the fact that he
entered the thunderstorm while in an overcast condition and it
caught him unprepared and the immediate severity of the
turbulence could cause the aircraft to obtain unusual positions,
that if, when entering a thunderstorm cloud a pilot prepares
himself for any eventuality, the possibility of him losing
control of his airplane is minimized. (T. PP. 80, 81, 82.)
When Lt. Andrews left Webb Air Force Base, he was proceeding
from a Southwesterly direction to a Northeasterly direction to
Scott Air Force Base, Illinois. The position of his airplane at
the time that the canopy was released which struck the
plaintiff's intestate was approximately one mile west of Ferrin,
Clinton County, Illinois. The Court will take judicial knowledge
of the fact that Ferrin, Clinton County, Illinois, is
approximately 35 to 40 miles in a Northeasterly direction from
Scott. There has been no explanation in this record why Lt.
Andrews should be approaching Scott from a Northeasterly
direction when the testimony shows that he was proceeding from
Webb Air Force Base, Big Springs, Texas, from a Southwesterly
direction to Scott in a Northeasterly direction. There has been
no explanation in this record by Scott, if it was able to advise
Lt. Andrews of a thunderstorm approximately 70 miles Northeast,
they could not, with the modern, advanced methods of making such
determination, have notified him of a thunderstorm approximately
35 miles Northeast of Scott which was the position of the
airplane at the time of the incident in question. The testimony
further shows that it is not impossible to control an airplane in
a violent thunderstorm if the pilot prepares himself for such an
eventuality. The Court is not finding fault with Lt. Andrews for
bailing out after he lost control of his airplane. It was the
only thing that any reasonable normal pilot would do, and this
Court is not criticizing or censuring Lt. Andrews for his action.
There is confusion in the testimony. Lt. Andrews repeatedly
refers to his approach to Scott from the Southwest (which would
be his line of flight from Webb Air Force Base), that his
instruments gave indications (T. Page 36) that he was over the
station (Scott) and received permission to land. After this he
flew into darker clouds, his speed was reduced and we find the
incident, out of which this law suit arose, happening some 35
Miles to 40 miles in a Northeasterly direction from Scott. And
during all this time Lt. Andrews received no intelligence from
Scott of any thunderstorm in the area, except the one some 70
miles in a Northeasterly direction from Scott.
The rule in Illinois is that negligence is a positive wrong and
the burden of proving it is on the party averring it, although
negligence may be either by commission or omission. It may be
proven by direct evidence or by giving in evidence such facts and
circumstances as will afford a reasonable inference to that
effect. Wallis v. Villanti, 2 Ill. App.2d 446, 120 N.E.2d 76.
From hearing the testimony in open court, from reading the
transcript of the testimony furnished to the Court and the briefs
submitted by the respective parties, and the Court being fully
advised in the premises, finds that:
2. Lt. Andrews was negligent in not, after he had entered the
overcast, preparing himself for any eventuality which would
prevent him from losing control of his aircraft which caused him
to release the ...