
    EASTERN AIR LINES, Inc., v. UNITED STATES.
    No. 11069.
    United States Court of Appeals Third Circuit.
    Argued Oct. 8, 1953.
    Decided Oct. 19, 1953.
    James B. Spell, Washington, D. C., (Warren E. Burger, Asst. Atty. Gen., Michael A. Poppiti, Asst. U. S. Atty., Wilmington, Del., Massillon M. Heuser, Atty. Department of Justice, Washington, D. C., on the brief), for appellant.
    Joseph W. Henderson, Philadelphia, Pa. (Rawle & Henderson, Robert E. Jones, Philadelphia, Pa., James R. Mor-ford, Wilmington, Del., on the brief), for appellee.
    Before BIGGS, Chief Judge, and Mc-LAUGHLIN and STALEY, Circuit Judges.
   PER CURIAM.

The questions presented by this appeal are primarily those of fact. It is the contention of the United States that the incontrovertible physical facts demonstrate that the pilot and co-pilot of the airliner owned by Eastern Air Lines, Inc. were negligent in failing to keep a proper lookout whereby the Army bomber, whose pilot was admittedly pursuing an aural null procedure, could have been seen and the collision between the two airplanes avoided. The United States also asserts that the pilot of the bomber did not approach the airliner from the rear and that the angle of the approach of the bomber to the airliner was from 89 to 90 degrees, but no wider. The United States also contends that it was negligent on the part of the airliner pilots to> leave the commercial airway and penetrate 8 miles into an operational area, despite the fact that by doing so they avoided the congestion of the Florence Air Base which lay within, the airway. The plaintiff contends that the pilot of the bomber was clearly negligent in that, the bomber approached the airliner from its left, slightly to the rear of the airliner in such close proximity to it as to render it impossible for the airliner to avoid the accident.

As to the deviation from the airway by the airliner, it appears that that deviation was legal and authorized by CAR No. 61.731, and the court below so found. As to the other contentions of the United States, we hold that ample evidence supports the findings of fact of the trial court and that its conclusion of law that, the bomber was at fault is correct. The contentions of the United States are based on a series of hypothetical conditions, carefully charted, and based upon that state of operative facts most favorable to it as shown by its own evidence.. We cite as an example its contention that the pilot of the bomber maintained a constant altitude. There is evidence, however, which, if believed, destroys the validity of the operative facts contended for by the United States.

The court below, in a carefully considered opinion, 110 F.Supp. 491, reached' the conclusion that the United States was-negligent. We agree.

The judgment of the court below will be affirmed.  