CONCEPCION PELLOSA VDA. DE IMPERIAL, ETC., ET AL., PLAINTIFFS AND APPELLANTS, VS. HEALD LUMBER COMPANY, DEFENDANT AND APPELLEE. LOURDES FERRER VDA. DE HERNANDEZ, ETC., ET AL., P…

Appeal from a decision of the Court of First Instance of Baguio
dismissing the complaints in the above entitled three (3) cases, with
costs against the plaintiffs.

On June 4, 1954, at about 6:50 a.m., a helicopter (PI-C-361) of the
Philippine Air Lines, Inc. (PAL), which had been chartered by the
Lepanto Consolidated Mining Co., took off from Nichols Field, in
Makati, Rizal, headed for Mankayan, Mt. Province, via Rosales,
Pangasinan. On board the helicopter were Capt. Gabriel Hernandez and Lt
Rex Imperial. The helicopter reached Rosales at 8:22 a.m., and,
fifty-three (53) minutes later, or at 9:15 a.m., it undertook the last
leg of its flight to Mankayan. However, the helicopter did not reach
this place, for it crashed on the way. A search party—composed of,
among others, Capts. Willis Rohlings and Jaime Manzano, both of the
PAL—organized to track down the missing helicopter, found it in a
ravine located in the Barrio of Ampusungan, Benguet, Mt. Province,
within the lumber concession of defendant-appellee, Heald Lumber Co.
which is several kilometers before reaching Mankayan. The helicopter
was a total wreck and both Capt. Hernandez and Lt. Imperial were dead.
The body of the former was strapped to his seat, but that of the latter
was several feet away from the wreckage. At the time of the flight,
Capt. Hernandez as a duly licensed helicopter pilot, whereas Lt.
Imperial, although a licensed plane pilot, was then under training as
helicopter pilot.

Owing to this accident, three (3) actions were instituted in the
court aforementioned, against said defendant, namely: (1) case No. 580
(G. R. No. L-14112), filed by PAL on March 2, 1ST56: (2) case No. 591
(G. R. No. L-14088), filed by Concepcion Pellosa de Imperial, widow of
the deceased Lt. Imperial, on April 13, 1956; and (3) case No. 592, (G.
R. No. L-14089), filed by Lourdes Ferrer de Hernandez, widow of Capt.
Hernandez, on the date last mentioned.

In the first case, the PAL sought to recover the following:

	Value of the helicopter		P80,000.00
	Compensation for the death of Capt. Hernandez and Lt.
		Imperial at P20,000 each	40,000.00
	Consequential damages due to the loss of the helicopter		53,400.00
	Funeral expenses for Capt. Hernandez and Lt. Imperial		2,542.00
	Expenses incurred in the training of Capt. Hernandez
		in the U.S. and Lt. Imperial for operation of helicopter	17,405.82
	Moral damages resulting from harmful publicity of
		the crash	30,000.00
			____________
		Total	P223,347.82
			____________

upon the ground that the mishap was due to the fact that the
helicopter had collided “with defendant’s tramway steel cables strung
in parallel of approximately 3,000 yards in length between two
mountains approximately 3,000 to 5,000 feet high in the vicinity of
defendant’s logging area in Ampusungan, Mountain Province.”

In each of the other cases, the respective plaintiffs therein prayed for judgment as follows:

	Actual and compensatory damages		P150,000.00
	Exemplary damages		50,000.00
	Moral damages		50,000.00
	Expenses of litigation		10,000.00
	Attorney’s fees		20,000.00
			____________
		Total	P280,000.00	raks

upon the theory that the death of Lt. Imperial and Capt. Hernandez
was due to defendant’s alleged “gross negligence” and “flagrant
violation of applicable laws and regulations.”

Being interrelated, the three (3) cases were jointly heard, and, in
due course, thereafter, the lower court, presided by Hon. Jesus de
Veyra, rendered the decision appealed from, finding that plaintiffs had
“failed to make out a case of negligence on the part of the defendant”
and, accordingly, dismissing the three (3) complaints. Hence, this
appeal by the plaintiffs. The three (3) cases are before us the amount
of the demand in each being in excess of P200,000, exclusive of costs
and interest.

Appellants maintain that the accident is imputable to the defendant,
because the helicopter, particularly its main rotor blades, had hit or
collided with defendant’s aforementioned steel cables.

In this connection, Capt. Rohlings, who, at the time of the
occurrence, was Assistant Superintendent of the Flight Control of the
PAL, testified that, during the investigation conducted by him at the
site of the crash, he found on the rotor blades of the helicopter

“Several long marks which contained small
indentations which were parallel to each other, parallel lines, if you
would put it that way, these marks were covered by blackish substance
of some kind which I took to be grease of some kind” (t.s.n., p. 95.)

Capt. Manzano, the Superintendent of Helicopter Operations of the
PAL, tried to corroborate this testimony of Capt. Rohlings. Both opined
that the marks were due to the contact of said rotor blades with the
steel cables of defendant herein. Photographs (Exhibits E-21, E-22 and
E-24) allegedly taken by Capt. Rohlings—of the rotor blades, purporting
to show the aforementioned markings, were introduced in evidence in
lieu of said rotor blades.

It is admitted, however, that the helicopter had hit a tree before
falling into a ravine. Moreover, commenting on appellants’ evidence,
His Honor, the trial Judge, had the following to say:

“The evidence for the plaintiffs as to the cause of
the crash is not conclusive. The main rotor blade was not preserved, so
this Court was not able to satisfy itself as to the nature of the two
long seriated streaks on the main rotor blade. The composition of these
streaks was not determined—whether they were grease from the steel
cable or marks from hitting a pine tree—for it can be equally argued
that these seriated streaks could have been caused by the strands of a
greasy steel cable or the rough bark of a pine tree”. (Decision, Record
on Appeal, pp. 19-20.)

Upon the other hand, defendant endeavored to prove that the mishap
had been due to two (2) causes, namely: (1) exhaustion of the fuel; and
(2) negligence of the pilot.

The record shows that the helicopter had a main tank and an
auxiliary tank with a capacity of twenty-seven (27) and fifteen (15)
gallons of fuel, respectively. The main tank was connected to the
engine, but the auxiliary tank was not. In order to transfer gasoline
from the latter to the former, it was necessary to land the helicopter,
as the process could not be undertaken during flight. This was, in all
probability, the reason why the aircraft had to land in Rosales,
Pangasinan, before proceeding to Mankayan.

Having left Rosales at 9:15 a.m., after its flight from Nichols
Field, of one (1) hour and thirty-two (32) minutes (from 6:50 to 8:22),
the helicopter was supposed to reach Mankayan at 10:44 a.m., the
estimated flying time between Rosales and Mankayan being one (1) hour
and twenty-nine (29) minutes. Upon the other hand, the time of the
crash was placed at around 11:30 a.m., or between 11:00 and 11:30 a.m.
By that time the helicopter had already flown from one (1) hour and
forty-five (45) minutes to two (2) hours and fifteen (15) minutes,
since it took off from Rosales, thus exceeding by sixteen (16) to
forty-six (46) minutes the aforementioned estimated flying time.
Considering that, with twenty-seven (27) gallons of gasoline, the
helicopter had to refuel after a flight of one (1) hour and thirty-two
(32) minutes (from Nichols Field to Rosales), it is apparent that,
after flying for a longer period of one (1) hour and forty-five (45)
minutes to two (2) hours and fifteen (15) minutes, with a little over
fifteen (15) gallons-or at most twenty-seven (27) gallons—of gasoline,
the provision of fuel must have already been exhausted.

Col. Arnaiz, aircraft dispatcher of PAL, testified that the “maximum
flight endurance” of the helicopter was “two hours and fifty minutes
including the auxiliary tank.” The Flight Plan (Exhibit B-I), as
explained by Col. Arnaiz, shows that the estimated flying time from
Nichols Field to Rosales was one (1) hour and forty-two (42) minutes,
and from Rosales to Mankayan, one (1) hour and twenty-nine (29)
minutes, or an aggregate estimated flying time of three (3) hours and
eleven (11) minutes, or twenty-one (21) minutes longer than the
estimated “maximum flight endurance” of the helicopter. Even if we
deduct from said total estimated flying time, from Nichols Field to
Mankayan, the ten (10) minutes saved in the flight from Nichols Field
to Rosales, Pangasinan, the result would still be eleven (11) minutes
beyond the said “maximum flight endurance” of the helicopter. In fact,
the crash site (Ampusungan) is only about sixteen (16) kilometers, or ten (10) minutes flying time,
to Mankayan. In other words, the accident took place in the area in
which the helicopter was to have fully consumed its entire supply of
gasoline, thus justifying the belief that it was forced to land in
Ampusungan due to lack of gasoline, and that, as the engine ceased to
function, its maneuverability must have become impaired, in view of
which it crashed, thus causing it to fall into a ravine in defendant’s
concession.

Several factors indicate strongly that this was in all likelihood
what happened for: (1) the site of the crash was more than a mile (over
three (3) miles, according to the defendant) off the plotted course,
altho, under normal conditions, no reasonably prudent pilot—according
appellants’ witness, Capt. Manzano—would have attempted to land in the
vicinity of the scene of the occurrence; (2) the wrecked helicopter
emitted no smell of gasoline and there was no sign of fire resulting
from the crash, despite the fact that the helicopter was using high
octane gasoline, which, admittedly, is highly inflammable and would
have probably set the craft aflame upon hitting the pine tree above
referred to, had there been some gasoline in the tank at that time; and
(3) the helicopter was a total wreck, thus showing that the impact must
have been strong.

The foregoing considerations suggest, also, that Capt. Hernandez and
Lt. Imperial had acted recklessly in undertaking the flight with a
supply of fuel hardly sufficient to enable them to reach their
destination. Besides, the landing report (Exhibit 9) shows that the
portions thereof pertaining to the pilot were accomplished or filled in
by Lt. Imperial upon landing at the Rosales airport. In fact, he signed
said report as pilot of the helicopter. Again, it appears
that during the flight from Rosales to Mankayan, the helicopter had
deviated from one to three miles from the course plotted by Capt.
Hernandez, in which Col. Arnaiz concurred “because that was the most
logical route to follow.” Had Capt. Hernandez been piloting the machine
from Rosales to Mankayan, he would have had no reason to deviate from
the course planned by him, for the “visibility and ceiling were
unlimited in the area and vicinity where the helicopter fell.” All
indications are, therefore, to the effect that, at the time of the
accident, the helicopter was being piloted, not by Capt. Hernandez but
by Lt. Imperial, in violation of Aeronautics Bulletin No. 1, Civil
Aviation Regulations, of the Bureau of Aeronautics (CAA)^[1], as well as Republic Act No. 776, Section 42 (H)^[2], for Lt. Imperial was not a licensed helicopter pilot and was merely in the initial stage of his training as such pilot.

It is next urged that defendant was negligent in failing to give
notice to the Civil Aeronautics Administration of the presence of the
aforementioned tram cables, which, appellants maintain, constituted a
hazard to aerial navigation. However, this pretense is not borne out by
the record. Appellants’ witness, Capt. Manzano, testified that
although, in searching for the missing helicopter, his plane flew so
low that there was a danger of collision with the mountains, he did not
notice said cables. The same were not, therefore, within the navigable
air space. Similarly, Capt. Rohlings, described the area over which the
cables were strung as “a congested area full of pine trees” and a
“mountainous terrain—slopping valley,” thereby implying that the space
from the cables down was not suitable for air navigation. In short, it
has not been satisfactorily shown that the cables were a hazard to
aerial navigation, or that the defendant should have or could have
reasonably foreseen that aircrafts would fly so low over the place as
to get entangled with said cables, for the area is dangerous to
navigation owing to its mountainous terrain “full of pine trees.”

In short, plaintiffs-appellants have failed to establish their
pretense by a preponderance of evidence, in view of which the decision
appealed from must be, as it is hereby affirmed, with costs against
them. It is so ordered.

Bengzon, C. J., Padilla, Labrador, Reyes, J. B. L., Paredes, and De Leon, JJ., concur.
Bautista Angelo, J., on leave.

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^[1] “CHAPTER VII—OPERATIONS OF LICENSED AIRCRAFT