Hyde

Plaintiff appeals from a judgment entered pursuant to a defense verdict in an action for damages for injuries received when he was struck by an amphibious aircraft while spearfishing. The plane was piloted by defendant Fred Pierce and owned by defendant Avalon Air Transport, Inc., a California Corporation. Since there is no question that Pierce was acting within the course and scope of his employment at the time of the accident, for convenience we shall use the singular in referring to the defendants.

Avalon Air Transport operates an air taxi service between Long Beach and the City of Avalon on Santa Catalina Island. Pierce, employed by Avalon Air Transport since 1959, had made approximately 20,000 round trips between Long Beach and the island before the accident occurred. He usually landed near the City of Avalon but if weather and water conditions made landing there dangerous, he would use an alternate pattern and land in kelp beds near Ring Rock, southeast of the City of Avalon. This is what he did August 12, 1962, the day the accident occurred.

Ring Rock, approximately 15 feet in diameter, rises from the water about 25 feet offshore. Plaintiff and four companions entered the…