Kramer

This is a personal injury action arising out of the crash of a private airplane piloted by defendant. After a jury verdict for defendant, the trial court granted plaintiff’s motion for a new trial. Defendant appeals from the order granting a new trial. Plaintiff has filed a “protective cross appeal” from the judgment entered on the verdict (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 349, p. 4324.)

On May 29, 1972, defendant piloted a Piper Cherokee 6 airplane from Santa Monica to Lake Elizabeth on a pleasure flight. Defendant had a private pilot’s license and 275 hours’ experience. Defendant had five other passengers, his wife and son, Reverend Wilbur Mansveld and his daughter, and plaintiff. Reverend Mansveld was himself an experienced pilot and a former military pilot instructor. He had a commercial pilot’s license and 2,100 hours of experience. Although Reverend Mansveld was not acting as co-pilot, he was sitting in the co-pilot’s seat, and he provided important testimony at trial. Defendant was at all times in command of the aircraft.

The crash occurred as defendant was attempting to land the plane at the Lake Elizabeth airstrip, an uncontrolled dirt…