Pemberton

This is an appeal from an order granting a new trial to plaintiff after a jury verdict for the defendant in an action for property damage to an airplane. The order granting the new trial was made on the ground “. . . of the insufficiency of the evidence to sustain the verdict. ...”

The plaintiff, Roy Pemberton, is a Cessna aircraft dealer in Bakersfield who leases, rents and sells airplanes. The defendant, James Walter Barber, had been taking flying lessons from Pemberton in order to qualify for his pilot’s license; after a course of instruction, while defendant was still a student pilot, he secured from the plaintiff an airplane in which to go to the Corcoran Airport. The defendant flew west from Bakersfield, but he testified that when he got half-way to Corcoran his engine “roughed up.” The north end of defendant’s ranch is about 6 miles from Corcoran. The defendant claimed that his plane “roughed up” a second time when he was about 8 miles from Corcoran and that as he needed a place to land he remembered that there was a roadway on his ranch which would serve the purpose. Defendant did bring his plane down to the dirt road, but there was a mound of earth about 20 or 30 feet…