Opinion
No. 15560.
February 22, 1929.
Bair Roach, of Alliance, Ohio, for plaintiff.
Baker, Hostetler Sidlo, of Cleveland, Ohio, for defendants.
At Law. Action by Thornton F. Neiswonger against the Goodyear Tire Rubber Company and another. On defendants' demurrers to the petition. Demurrers overruled.
The petition was as follows:
"Plaintiff says the defendants, The Goodyear Tire Rubber Company, and The Times Press, now are and at the times hereinafter mentioned were both corporations, duly organized and existing under the laws of the state of Ohio with their respective places of business in the City of Akron, Ohio.
"Plaintiff for his cause of action against the defendants says that on the 29th day of October, 1927, at about four-thirty P.M., he was engaged in work on his farm, situated about a mile west of Marlboro, in Stark County, Ohio, and was loading a wagon to which there was a team of horses attached and upon which wagon his grandson, a small child, was then and there seated; that at the time, the defendant, The Goodyear Tire Rubber Company, was then and there the owner of what is known as a `dirigible' or `blimp' and was engaged in inter-state traffic, carrying passengers and engaging in commerce at points within the State of Ohio, and that on this particular occasion was engaged in a business enterprise for and on behalf of The Times Press in delivering extra editions of the newspaper for The Times Press to the Mount Union Football field while the Akron-Mount Union football game was in progress at Alliance, Ohio.
"Plaintiff says that said dirigible was operated in a southeasterly direction at the place hereinbefore mentioned and was then and there being operated in a negligent, careless and dangerous manner and contrary to law, and was operated in such a manner and at such a low altitude that as it appeared on and over the property of the plaintiff herein it frightened the team of horses which were attached to plaintiff's wagon, which wagon plaintiff was then and there loading, and caused said team to run away, dragging and throwing plaintiff under the wheels of said wagon whereby said wagon passed over the body of the plaintiff at the neck and chest, thereby greatly injuring plaintiff in the muscles and ligaments and about the entire thoracic region and injuring him about the spine and otherwise, so that plaintiff was confined to his home for five weeks and is still unable to perform his regular duties and still suffers pains in and about his chest and spine, and has been permanently injured, is extremely nervous and unable to sleep or eat properly; that prior to said accident he enjoyed good health.
"Plaintiff says that the defendants were guilty of carelessness and negligence in the operation of said dirigible or aircraft in the following particulars to wit:
"First: That the defendants failed to operate said dirigible or aircraft at a reasonable and safe altitude, but, on the contrary operated the same at an unreasonable altitude, to wit: approximately one hundred fifty to two hundred feet above the earth's surface, contrary to Section 11, Part 5, of the Federal Air Act, which provides as follows:
"`Sec. 11. * * * (a) It shall be unlawful, except to the extent authorized or exempt under section 6 — * * *
"`(5) To navigate any aircraft otherwise than in conformity with the air traffic rules.' 49 USCA § 181.
"`Section 81. (G) Air traffic rules. Exclusive of taking off and landing, and except as otherwise permitted by Section 86, aircraft shall not be flown —
"`(1) Over the congested parts of cities, towns or settlements except at a height sufficient to permit of a reasonably safe emergency landing, which in no case shall be less than one thousand feet.
"`(2) Elsewhere at a height less than five hundred feet, except where indispensable to an industrial flying operation.'
"Second: In operating said dirigible or aircraft at such an altitude as to endanger the life, limb and property of those on the earth's surface, and especially this plaintiff.
"Third: In operating said dirigible or aircraft at such a low altitude as to interfere with the then existing use to which the land or the space over the land was then being put by the plaintiff and in such a manner as to be imminently dangerous to the plaintiff in the lawful use of his lands.
"Fourth: In flying at such a low altitude so as to become a trespasser over and about the property of the plaintiff as hereinbefore set forth without lawful authority so to do.
"Fifth: In operating said dirigible or aircraft at such a speed and in such a manner as to frighten animals on the earth's surface and especially the team of horses owned by the plaintiff.
"Plaintiff says that by reason of the aforesaid acts of negligence on the part of the defendants he has been damaged in the sum of Twenty-Five Thousand Dollars ($25,000).
"Wherefore, plaintiff prays judgment against the defendants The Goodyear Tire Rubber Company and The Times Press in the sum of Twenty-Five Thousand Dollars ($25,000), together with the costs of this action."
It is difficult to say whether the petition intends to aver that the airship was making an interstate or intrastate flight when the accident happened. If interstate, the court feels that the petition sufficiently states plaintiff's claim as one arising under the laws of the United States, to give this court jurisdiction. He makes other claims of negligence; but one element in his case is alleged violation of that section of the Air Commerce Act of 1926 which forbids the navigation of aircraft contrary to the air traffic rules established by the Secretary of Commerce. Sections 173 and 181, tit. 49, U.S.C. (49 USCA §§ 173, 181). I am of opinion that plaintiff is in the class of persons intended to be within the benefits of the 500-foot altitude rule, and that his right to recover damages for its violation, though not expressed, is implied. Texas Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S. Ct. 482, 60 L. Ed. 874.
In their briefs, counsel for defendants cite the headnote in Western Union Telegraph Co. v. Railroad Co., 178 U.S. 239, 20 S. Ct. 867, 44 L. Ed. 1052. But in McGoon v. Railway Co. (D.C.) 204 F. 998, 1001, it is pointed out that cases which use the expressions so relied on do not assert a right created by the federal law; and Judge Amidon states the affirmative rule thus: "Whenever federal law grants a right of property or of action, and a suit is brought to enforce that right, such a suit arises under the law creating the right, within the meaning of statutes defining the jurisdiction of federal courts." Earnhart v. Switzler (C.C.A.) 179 F. 832, also cited, is not in point, as it involved no right created by federal law. Isaac Kubie Co. v. Lehigh Valley R.R. Co. (D.C.) 261 F. 806, was a case that had been removed for diversity of citizenship and because arising under federal laws regulating commerce. It was decided on a question of venue. The court held that the fact that the case involved violations of regulations of the Interstate Commerce Commission did not make the jurisdiction of the federal courts exclusive. In the case at bar, the question is as to the existence and not the exclusiveness of this court's jurisdiction.
If the defendants, or either of them, were engaged in an intrastate flight when the plaintiff was injured, the application of the air traffic rule does not necessarily follow. The Air Commerce Act was passed under the power of Congress to regulate interstate and foreign commerce. If the circumstances and conditions under which air commerce is carried on are such that it is necessary for the altitude rule to apply to and regulate intrastate flights in order to protect interstate movements, then it will so apply, the same as to an interstate flight. Railroad Commission of Wis. v. Ry. Co., 257 U.S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A.L.R. 1086; New York v. U.S., 257 U.S. 591, 42 S. Ct. 239, 66 L. Ed. 385; Texas Pacific Ry. Co. v. Rigsby, supra; Zollman's Law of the Air, § 58.
It was evidently the thought of Congress that navigation of the air would be generally if not entirely subject to the federal act. This is shown by the text of the law and by the omission of any expression confining its operation to interstate commerce; also by the statement of the managers when they returned a conference report on the bill, as follows: "In order to protect and prevent undue burdens upon interstate and foreign air commerce the air traffic rules are to apply whether the aircraft is engaged in commercial or noncommercial or in foreign, interstate or intrastate navigation in the United States, and whether or not the aircraft is registered or is navigating in a civil airway." Congressional Rec. May 13, 1926, p. 9390.
A great many air traffic rules have been established. See Information Bulletin No. 7, Department of Commerce. They relate to the meeting and passing of aircraft, their overtaking or approaching one another, transportation of explosives, dropping objects, taking off and landing, lights and signals to be carried, and other similar matters, as well as to altitudes of flight. It is apparent that all or nearly all of these rules must be applied to both intrastate and interstate craft in order to secure the safety of the latter, and that with respect to these matters the federal regulations must be paramount. Conflicting state rules could not be allowed. This is not, however, so evident with respect to the 500-foot altitude rule involved here. It is a little difficult to see in what respect interstate aircraft navigating at or above the prescribed elevation can be endangered or interfered with by intrastate craft moving in a lower plane. However dangerous this may be to the intrastate craft and to persons and property on the ground, the danger to interstate craft is not apparent.
It may be that plaintiff will not be able to prove that any necessity exists for applying the federal altitude rule to intrastate movements. That would constitute a failure of proof so far as this ground of negligence goes, provided, of course, this was an intrastate flight.
But, in my opinion, whether the flight was interstate or intrastate, the petition, which sets up the altitude rule and states that it was negligently violated by the defendants, to plaintiff's damage, sufficiently states a case under the federal law which should not be dismissed for lack of jurisdiction. The claim appears to be genuine, and is not so unreasonable that it can be regarded as fictitious. See Columbus Ry. Power Light Co. v. Columbus, 249 U.S. 399, 39 S. Ct. 349, 63 L. Ed. 669, 6 A.L.R. 1648; Nashville, C. St. L. Ry. v. Taylor (C.C.) 86 F. 168, 178.
Defendants' demurrers will be overruled, and they may have their exceptions.