Friendly, Kaufman and Hays, Circuit Judges.
Braniff Airways, Inc., Phillip Addabbo, and Morton D. Stein, as executor of the estate of Maurice Berg, appeal from a judgment of the United States District Court for the Southern District of New York dismissing their complaints in actions against Curtiss-Wright Corporation arising out of an airplane crash that occurred near Miami, Florida on March 25, 1958. Braniff also appeals from an order denying its motion to amend its complaint by adding as plaintiffs the flight crew of the airplane.
Braniff was the airline operating the plane which crashed. Addabbo and Berg*fn1 were passengers on the plane.
The gravamen of the complaints is that the crash was caused by the failure of an engine manufactured by defendant. Defendant sold the engine to Douglas Aircraft Co. about July 17, 1956; Douglas installed it in a Douglas DC-7C aircraft which it sold to Braniff and delivered on October 23, 1956. Sometime later Braniff removed the engine from this aircraft and installed it in the right inboard position of the Douglas DC-7C which crashed.
Braniff's action is based upon negligence and also breach of both express and implied warranty. Berg sued originally only on the ground of negligence. Later he commenced a separate action in implied warranty, his motion for leave to amend his complaint to assert that claim in the negligence action having been denied. Berg v. Curtiss-Wright, Corp., 224 F. Supp. 236 (S.D.N.Y. 1963). Addabbo also sues on implied warranty. The cases were consolidated for trial together with certain related actions.*fn2 A jury trial was had, limited by agreement to the issue of liability.
At the end of the plaintiff's case, Curtiss-Wright made several motions which the court collectively treated as a motion pursuant to Rule 50(a) of the Federal Rules of Civil Procedure for a directed verdict. Curtiss-Wright also sought dismissal of the implied warranty claims on the ground that they were barred by the statute of limitations. The court directed a verdict for Curtiss-Wright on the issues of negligence and breach of warranty. It held that the claims of Berg and Addabbo based on implied warranty were barred by the statute of limitations.
We reverse the determination of the district court as to the claims sounding in negligence, holding that there was sufficient evidence of defendant's negligence to require submission of that issue to the jury. In all other respects we affirm.
We are persuaded that there was sufficient evidence of Curtiss-Wright's negligence to take the case to the jury.
Examination of the engine in question after the crash revealed that the number eleven cylinder had failed, that it had separated from the engine, and that its wall was scuffed. A Curtiss-Wright employee testified that the cylinder wall showed evidence of "ladder cracking." There was testimony that overheating of a cylinder can cause scuffing and that scuffing can lead to ladder cracking and eventually to cracking of the cylinder barrel and its separation from the engine. A letter that Curtiss-Wright wrote to Braniff after the crash stated that the "cylinder barrel failures" occurring in the Curtiss-Wright engines were "apparently the result of high combustion chamber temperatures."
The evidence of Curtiss-Wright's negligence included the following:
(1) Curtiss-Wright increased the rating of the engines of this so-called E A series (the type of engine involved here) from the 3250 horsepower of the predecessor D A series to 3400 horsepower. Gregory, an independent engineering consultant, testified that the increase in horsepower raised the temperature in the cylinders, aggravating the scuffing problem and greatly affecting the reliability of the engine. He stated that a reasonable horsepower to take from the engine would have been 3250 rather than 3400.
(2) Curtiss-Wright admitted that the fuel injection pump timing used in the type of engine involved in the crash had caused cylinder temperatures higher than those occurring in a similar ...