Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.
DUFFY, Circuit Judge. These suits were brought by Siesel A. Franklin and Helen W. Franklin, his wife, for damages resulting from the crash of Franklin's Beechcraft Bonanza plane on March 31, 1959, as the plane was approaching the runway at Meigs Field, Chicago. In the first suit, the Franklins claimed defendant Chicago Helicopter Airways, Inc. (Airways) was negligent in the operation of one of its helicopters which was piloted by defendant Creighton. In the second suit, the defendants charged with negligence were the United States of America and Hugh Riddle, Jr., the latter being the air traffic controller in the tower at Meigs Field.
Plaintiffs' theory of recovery was that the helicopter had crossed the Beechcraft's flight path in such a way as to leave a wake turbulence which caused the Beechcraft to crash. In the second suit, plaintiffs allege the United States and its air traffic controller were negligent for failing to keep a greater separation between the craft in anticipation of the turbulence problem, and in failing to warn Franklin of the helicopter's presence. There were also allegations that the tower control operator did not properly keep the helicopter within his view.
The two suits were consolidated for trial and were tried to the Court. The District Court entered judgment in favor of the plaintiff, Helen W. Franklin, finding both Airways and the United States, as well as observer Riddle, to have been negligent, but denied recovery to Siesel A. Franklin who was found to be contributorily negligent. Siesel A. Franklin filed a cross-appeal claiming the District Court erred as a matter of law in its conclusion that said plaintiff was contributorily negligent.
About 7:15 on the morning of March 31, 1959, Siesel A. Franklin then 61 years of age, and his wife Helen, left the airport at Denver, Colorado, destined for Chicago, Illinois, in a Beechcraft Bonanza airplane which Franklin had purchased the previous day. Franklin was an experienced pilot who had flown over 10,000 hours. For years he had acted as a pilot instructor. In more recent years, Franklin had used his airplane in calling upon customers in his lumber business. The new Bonanza was a single engine land model. This plane had a more powerful engine than planes previously owned by Franklin.
About ten hours after Franklin had left his home on March 31, 1959, his plane was about fifteen miles west of Meigs Field airport. Franklin made radio contract with the control tower at Meigs Field and requested landing instructions. The control tower asked whether he wanted "right or left approach." Franklin requested a lefthand approach and the tower operator asked him to call him when he reached the "downwind leg" of his landing pattern.
Considering the four sides or legs of a rectangle landing pattern, the leg that leads into the runway is known as the "final approach." The opposite leg which runs parallel to the runway, is known as the "downwind leg." The leg which joins the downwind leg with the final approach is the "base leg." The remaining leg leading to the downwind leg is known as the "crosswind leg."
On Franklin's approach to Meigs Field, his crosswind leg brought him from the west out over Lake Michigan at a point south of Meigs Field. His downwind leg brought him north over Lake Michigan, parallel to Meigs Field. North of the Planetarium he turned into the base leg. He followed the base leg to a point about 1450 feet north of the entrance to the runway. It was at this point, Franklin testified, he first saw the helicopter which already was on the ground. Riddle, the control tower operator estimated Franklin's position was 3/4 of a mile north of the runway when the helicopter touched down. Witness Drew testified the helicopter was unloading passengers when the Bonanza crashed.
At all times during Franklin's approach, the visibility was good. It was stipulated that at the time of the accident, the wind was from the east-southeast at eight knots.
About the time Franklin was approaching Meigs Field from the west, an S-58 helicopter owned by Airways and piloted by Richard Creighton, was approaching from the west in an oval right turn pattern that took it first north of the airport and then southwest to land on a diagonal taxiway adjacent to the main runway. Pursuant to normal procedure, the helicopter was cleared by the tower to land on the diagonal taxiway leading to the terminal. When the helicopter passed the end of the lagoon, it made a second call to the tower and was again cleared to land.
There was testimony that the helicopter passed over a portion of the runway in making its approach to the taxiway. We accept this as the testimony most favorable to the plaintiffs. The control tower operator testified "The helicopter was not warned to stay clear of the runway in coming in on the diagonal, because I saw no conflict." The tower operator also testified "The helicopter would not be violating any rules, regulations or directions whatsoever if he came directly across the runway. He wouldn't even have to ask for clearance."
After observing the helicopter on the ground, Franklin continued on his final approach toward the north end of the runway. He passed over four rows of trees at an altitude of some eighty feet above the ground. Somewhere between the row of trees and the end of the runway, his Beechcraft Bonanza, which was then some twenty to thirty feet above the ground, began to "mush" and "settle" very rapidly. The right wing of the plane contacted the ground at a point about 300 feet north of the runway edge. The plane then cartwheeled to a spot just short of the fence on the north end of the runway.
The primary question is whether the Franklin plane crashed as the result of a slow speed stall or whether it crashed as a result of encountering turbulences left in the wake of the helicopter. There is a further question, if the crash were caused by the turbulence, did the operation of the helicopter in landing as it did, constitute actionable negligence by any defendant herein.
Witnesses Bodenhamer and Drew were sitting in an automobile near the runway at the time of the crash. They were waiting for the Franklin Bonanza to land so they could drive across the runway to the plane parking area which was due east from where they stopped their automobile. They wished to inspect a plane which Mr. Drew contemplated purchasing. Bodenhamer observed the approach of Franklin's plane. He and Drew had an unobstructed view of the runway being approached by Franklin. He testified "He actually stalled the airplane." He also testified that he did not hear Franklin apply any emergency throttle. Drew, who had 2000 hours' experience in Beechcraft Bonanza planes, also watched the plane approach and testified that, in his opinion ". . . the man stalled the airplane. . . ." He ...