Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.
These are suits for wrongful death resulting from an airplane accident. The accident took place in Decatur, Georgia, on August 14, 1950. Suits were filed in the District Court for the Middle District of Pennsylvania on August 6, 1951. It was six years later that the cases were tried together and verdict and judgment were entered for the defendant on June 25, 1957. Motion for a new trial was denied March 10, 1958. This long time lapse between accident and judgment is highly regrettable.
These cases involve the death of three persons in an airplane manufactured by the defendant. The pilot and two passengers were killed. The suits are brought by the widows of the deceased passengers against the manufacturer of the plane.*fn1 The negligence alleged is improper construction. Plaintiffs claim that an aileron hinge bracket was defective and that as a result the aileron became detached in flight causing the accident. The case, when it finally came to trial, took some time. There was expert testimony for both sides on the manner of construction which we need not review here.
The trial judge had no difficulty with the choice of law problem. He recognized, following the rule of Klaxon v. Stentor, 313 U.S. 487 (1941), that, this being a diversity case, the Pennsylvania choice of law rule governed. He also recognized, following the pattern of Moran v. Pittsburgh-Des Moines Steel Co ., 166 F.2d 908, 910, 917-18 (3d Cir. 1948), that the Georgia rules applied to the substantive rights and that Pennsylvania law determined, in general, how the case was to be proved, except for those matters governed by the Federal Rules of Civil Procedure. The judge gave the jury a well-constructed and understandable charge. If the parties had been content to let the presentation end with this charge we should have no trouble with the case.
The judge presented several interrogatories for the jury to answer. The first one was as follows:
"1. Was there negligence on the part of the defendant, Piper Aircraft Corporation, which was a proximate cause of the accident?"
To this interrogatory the jury brought in the answer: "No."
It is to be noted that this question is a double-barreled one. It involves answering two questions; first, was there negligence and, second, was that negligence the proximate cause of the accident.*fn2 If the issue of negligence had been submitted separately the point about to be discussed perhaps might not have been raised, for if there was no negligence, the case would have ended right there.
The judge in his charge had correctly talked the difficult causation point to the jury. One of the problems that body had to consider was whether the accident was caused by both the negligence of the pilot of the plane and the negligence of the manufacturer in producing an unsafe machine. The judge had told the jury that for the plaintiffs to recover there must have been shown negligence on the part of the defendant "and that the accident resulted in whole or in part from such negligence." The judge then considered the question of the negligence of the pilot and the manufacturer. He said, "In this connection it is possible to have more than one such cause. If two or more negligences are existing at the time of an injury and concur in producing it, the fact that one precedes the other slightly in point of time is a matter of no moment. They may still be concurring causes."
When the judge finished his charge he took up the points for charge which lawyers for each side had submitted. Nine for the plaintiffs were read and approved. Two for the defendant were read and approved. It is the defendant's point number eleven which makes the trouble here. This is what was asked for and this is what was approved:
"11. Where several theories are advanced for the cause of an accident and one is as plausible as another and equally consistent with the factual testimony so that the verdict would necessarily be a mere question as to the real cause, no recovery can be allowed. Likewise, it is true that where an injury may be the result of one of several causes for only one of which the defendant is liable, the burden is on the plaintiffs to individuate that one as the proximate cause of the accident and to exclude other causes fairly suggested by the evidence to which it would be equally reasonable to attribute the accident."
The latter part of this paragraph, the plaintiffs say, charges recovery for a concurrent cause out of the case. We agree with that. If the pilot was negligent in operating the plane and the defendant was negligent in making a defective plane, it could well be that the combination of the negligence of each produced this catastrophe. Under such circumstances Piper would not be relieved of responsibility for the plaintiffs' losses merely because the pilot was negligent also.*fn3 Did not the charge, then, require the plaintiffs to "individuate" the one proximate cause of this accident and attribute it all to Piper if there was to be a recovery? We do not see how the language is susceptible of any other interpretation. It is inconsistent with what the judge had told the jury earlier about concurrent causes contributing to an accident.
Defendant's counsel says that the words in the charge were taken directly from the opinion of Mr. Justice Stern in Foley v. Pittsburgh-Des Moines Co ., 363 Pa. 1, 24-25, 63 A. 2d 517, 528 (1940), a case arising from the same accident which this Court dealt with in Moran, cited above. So it is. But the words are taken out of context and with no understanding of what the learned opinion writer was explaining. Mr. Justice Stern had earlier in the opinion recognized the concurring cause point in connection with the possibility that the East Ohio Gas Company, not a defendant, might also have been involved in the design of the tank which exploded and caused the disaster. He pointed out that to the extent that this company was responsible ...