Rehearing Denied March 4, 1952.
Judgment reversed with directions.
Conner & Jones and James M. Murphy, all of Tucson, for appellant.
Darnell, Robertson & Holesapple and Charles D. McCarty, all of Tucson, for appellees.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concurring.
Udall, Chief Justice.
[73 Ariz. 278] This appeal is by the plaintiff, Donald E. Lunsford, Jr., from a judgment of the lower court, entered upon the verdict, denying him compensatory damages for the alleged negligence of the defendants-appellees, Tucson Aviation Corporation, Paul W. Sullivan, as co-owner and general manager
of the corporation, and Alexander B. Padilla, a flight instructor. The question presented is whether the doctrine of assumption of risk is applicable under the circumstances of this unique case?
Plaintiff was a student enrolled under the Servicemen's Readjustment Act of 1944, 38 U.S.C.A. § 693 et seq., commonly called the "G.I. Bill", for a course of instruction in aviation with the defendants. At about 2:30 p. m. on June 27, 1947, the defendants provided for and directed the plaintiff to take a cross-country flight from Tucson, Arizona, to Las Vegas, Nevada, accompanied by and under the supervision of Padilla. After a routine check of the plane, plaintiff was directed by Padilla to take the controls but upon reaching an altitude of approximately 75 to 100 feet they hit violent downdrafts which caused the plane to lose altitude, and at the latter's request [73 Ariz. 279] plaintiff immediately surrendered the controls to Padilla. The instructor attempted to bring the plane through this difficulty but it kept losing altitude and crashed into a clump of trees, seriously injuring the plaintiff.
There was one other plane scheduled by the defendants to make this cross-country flight. As soon as plaintiff and Padilla had cleared the runway, a Luskum monoplane took off with James Wiggins, the student pilot and Everett G. Sneed, the instructor. Wiggins and Sneed experienced some rough air at approximately 100 feet but due to the superior efficiency of their plane had no difficulty with it.
At the time of the accident the plaintiff, who was then twenty years of age, had a private pilot's license with 151 hours in the air and was receiving instruction for a commercial license but had not previously received any training in meteorology (the science of wind currents, etc.). Plaintiff testified that he had flown this particular plane a few times before but had never been instructed concerning its pecularities, i. e., that it was a poor performer at high altitudes, nor had he ever before flown in the heat of the day. He also testified that he had never experienced a violent downdraft as he had always flown in the cool of the day when the air currents were smoother.
Plaintiff and Padilla were flying a Culver V, which was being leased by the defendants, and was described as not a regular flight training plane. It was testified that it is a poor climber at high altitudes and that in the summer during the heat of the day in southern Arizona the air, because of its density, simulates high altitude.
The trial court allowed the defendants to amend their answer over plaintiff's vigorous objection after both sides had rested, to include the defense of assumption of risk, and the court then gave the instruction complained of on this appeal, viz.: "You are further instructed that if the plaintiff, Donald E. Lunsford, Jr., knew or should have known of the existence of the dangers incident to the flight or which might possibly be encountered during the flight, and was able to make an intelligent choice as to whether he should make the flight or abandon the same and avoid such hazards, and if you find that, possessed with such knowledge and choice he continued said ...