The opinion of the court was delivered by: MCGUIRE
These are wrongful death actions by the executor of the estates of Ralph E. Miller and Mildred Miller, husband and wife, who died in an air collision of November 1, 1949, in the vicinity of Washington National Airport while they were passengers in an Eastern Airlines plane.
Before trial the parties had stipulated and agreed on the following facts:
At approximately 11:46-11:47 A.M., E.S.T., on November 1, 1949, an Eastern Airlines DC-4 No. N88727, denominated as Eastern flight 537, and a P-38 military type aircraft No. NX-26927 collided in mid-air while the Eastern DC-4 plane was approximately 300 feet in the air on final approach for landing on runway number 3 at the Washington National Airport, Washington, D.C. Eastern flight 537 was carrying a crew of 4 persons (pilot, copilot, steward and stewardess) and 51 passengers, all of whom, including plaintiffs' decedents, were killed in and as a direct and proximate result of said accident. The P-38 was carrying only the pilot, Eric Rios Bridoux, a citizen of Bolivia and an officer in the Bolivian Air Force who was then operating the P-38. Bridoux was seriously injured in said collision but survived. Both aircraft were completely wrecked and such debris or components of the planes as were thereafter found in or near the scene of the collision are indicated on a stipulated chart.
Eastern's flight 537 was enroute from Boston, Massachusetts, via intermediate points to Washington, D.C. Over Beltsville, Maryland, 15 miles northeast of the Washington National Airport, flight 537 contacted the Washington control tower on 119.1 megacycles voice radio communications and the flight was cleared by the tower to enter a left traffic pattern for landing on runway number 3. One minute before that clearance, that is, at 11:37 A.M., E.S.T., the P-38 had taken off from runway number 3 at Washington National Airport on a test flight. From the time the P-38 departed until after the accident, visibility in the vicinity of the airport remained at 15 miles, ceiling was 6,500 feet with scattered clouds at 3,500 and surface wind was from the northeast 20-25 miles per hour.
As to the defendant Eastern Airlines, there was a jury verdict against it, while the defendant Bridoux was exonerated.
The case of the defendant United States was tried to the Court at the same time, the plaintiff alleging negligence of a concurring character specifically set forth in a pretrial stipulation:
a. The failure of the control tower personnel to issue a timely warning to the Eastern plane as to the P-38 being on final approach;
b. The failure of the tower personnel to take appropriate steps to warn the P-38 that the Eastern plane was on final approach and to deter him from flight actions inconsistent with or dangerous thereto;
c. The failure of the tower personnel to take appropriate action to separate the two planes involved so as to avoid collision;
d. The failure of the tower personnel to employ simultaneous radio transmissions to both planes to assure each being advised as to the actions of and the directions to the other;
e. The failure of the tower personnel to require the Eastern plane to follow the prescribed landing pattern and toleration of a shortcut thereof;
f. The failure of the tower to warn the P-38 that the Eastern plane was not following the prescribed landing pattern but was shortcutting same;
g. Violation of air regulations then and there in full force and effect, as follows: Civil Air Regulations, Part 26, Sec. 26.26, Aeronautical Rules for the Washington National Airport, Sec. 571.3.