Opinion
July 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 643
Page 644
A. Daniel Rooney, Aurora, for plaintiff-appellant.
Sandhouse, Sandhouse & Wilson, C. H. Sandhouse, Sterling, for defendant-appellee Western Aviation, Inc.
Hemminger, McKendree, Vamos & Elliott, George L. Vamos, Denver, for defendant-appellee John F. Taylor.
SMITH, Judge.
Plaintiff-appellant sued for recovery of property damage and loss of profits arising from structural damage to the plaintiff's seaplane. The plaintiff alleged that defendant Western Aviation, Inc., had breached the terms of a bailment contract between plaintiff and Western, and alternatively, that co-defendant Taylor, Western's pilot instructor, was negligent in the operation of or permitted the negligent operation of the seaplane. Trial was to the court. Upon the conclusion of plaintiff's case-in-chief, the trial court dismissed the case pursuant to C.R.C.P. 41(b)(1). Plaintiff appeals the dismissal and we affirm.
The facts, as stated in the record, are briefly as follows: Plaintiff's seaplane was leased to Western and flight instruction was one of the contemplated uses of the seaplane. On September 27, 1971, Taylor, as chief flight instructor for Western, was giving water-landing instruction to a student in plaintiff's seaplane. The student was an experienced pilot with numerous qualifications but with little experience in seaplane. On the occasion in question, Taylor's sole function as a certified flight instructor was to monitor the performance of the student and to give him such direction as might improve his technique. At the time of the accident, Taylor directed the student to make a glassy-water landing, a maneuver which is particularly dangerous because a pilot's depth perception cannot be relied upon to determine the distance between the water and the aircraft due to lack of visual references. Prior to the landing which resulted in the accident, the student had executed four successful glassy-water landings. As the seaplane touched the water on the last approach, it looped to the right causing damage to various sections of the seaplane. There is uncontradicted evidence in the record that the aircraft manufacturer's recommended glassy-water landing procedures were being followed at the time of the accident.
Plaintiff's two expert witnesses were questioned as to whether Taylor had met the standard of care required of an ordinary prudent flight instructor under the circumstances in evidence. Plaintiff's first expert testified that in his opinion safe and acceptable landing procedures had been followed. Plaintiff's second expert witness testified that in his view safe and acceptable procedures were not followed, thus creating a conflict in testimony between the plaintiff's own expert witnesses.
The only important issue presented for review is whether the trial court's dismissal of the lawsuit at the conclusion of the plaintiff's case-in-chief was proper.
In a trial to the court, the test to be applied in granting or denying defendant's motion for judgment at the conclusion of plaintiff's case is not whether the plaintiff has presented a prima facie case but whether a judgment in favor of the defendant was justified by a preponderance of the evidence adduced upon plaintiff's case, plaintiff having exhausted his opportunity to present further evidence. Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215; See Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284. The trial court in the instant case found and concluded that judgment for defendant was justified. If reasonable men can differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiff's case, then this court will not interfere with the findings of fact made by the trial court. Blair v. Blair, 144 Colo. 442, 357 P.2d 84. The evidence of the method of instruction used and the manner in which the glassy-water landings were made is not in conflict. The fact that the plaintiff's two expert witnesses differed in their opinions as to whether the defendants were negligent makes apparent that this is a classic case where reasonable men could, and did, differ in the inferences and conclusions which they drew from the evidence. Thus, we conclude that the trial court's judgment for defendants at the conclusion of the plaintiff's case was in accordance with the evidence and the law.
The plaintiff urges that the doctrine of res ipsa loquitur is applicable to the instant case and that, therefore, the burden of disproving negligence is upon the defendant. We disagree. The doctrine of res ipsa loquitur requires that: (1) The event must be one which would ordinarily not occur in the absence of someone's negligence; (2) it must be caused by an agency of instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff; and (4) the evidence as to the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. Hilzer v. Macdonald, 169 Colo. 230, 454 P.2d 928.
There is no evidence in the record to indicate that the accident was one which would not ordinarily occur without someone's negligence. Because the seaplane was being piloted by the student, it was not within the exclusive control of Taylor. And, because the student, who could and did testify to all of the events surrounding the accident, was called to testify on behalf of the plaintiff, the true explanation of the event was as accessible to the plaintiff as to the defendant. Thus, there was no error in the trial court's refusal to apply res ipsa loquitur.
Plaintiff also argues that because the seaplane was delivered to the defendant in good condition and because it was damaged while in the defendant's possession, there arises a presumption that the defendant was negligent. We agree with the general proposition that when goods are delivered to a bailee in good condition and they become damaged while in his possession, a presumption of negligence on the part of the bailee arises. The burden of going forward with the evidence to rebut that presumption rests upon the bailee. Chabot v. Williams Chevrolet Co., Inc., 30 Colo.App. 277, 491 P.2d 612. There is, however, no shift in the burden of proof which remains upon the plaintiff-bailor. Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700. This presumption is one which will sustain a judgment only in the absence of any evidence tending to negate the bailee's negligence. Once evidence which would support a finding that there was no negligence has been received, the presumption disappears. In the instant case, plaintiff's own witnesses supplied sufficient evidence from which the court could, and did, conclude that the defendant was not negligent. Therefore, the fact that the presumption may have existed at some time in the case is not material upon this appeal.
Judgment affirmed.
PIERCE and RULAND, JJ., concur.