text:
"No person shall move any building or frame of any building, into or upon any of the public streets, lots or squares of the city, or cause the same to be upon, or otherwise to obstruct the free passage of the streets, without the written permission of the mayor, or president of the city council, or in their absence a councillor. A violation of this section shall on conviction, subject the offender to a fine of not to exceed twenty-five dollars,"
is not in conflict with the provisions of the Constitution of the United States.
"No person shall move any building or frame of any building, into or upon any of the public streets, lots or squares of the city, or cause the same to be upon, or otherwise to obstruct the free passage of the streets, without the written permission of the mayor, or president of the city council, or in their absence a councilor. A violation of this section shall on conviction, subject the offender to a fine of not to exceed twenty-five dollars."
sentenced to pay a fine of twenty-five dollars. He appealed to the District Court of the First Judicial District of the Territory of Utah.
On the admission of Utah into the Union, the case was transferred to the Fifth District Court of Juab County, and there tried on the 24th of October, 1896, by the court without a jury, by consent of the parties.
Section 12, supra, was offered and admitted in evidence. Plaintiff in error objected to it on the ground that it was repugnant to Section 1 of Article XIV of the Constitution of the United States in that it delegated an authority to the mayor of the city, or, in his absence, to a councilor.
The evidence showed that the plaintiff in error was the owner of a wooden building of the dimensions of twenty by sixteen feet, which was used as a dwelling house. It was constructed prior to the enactment of the ordinances above mentioned. The evidence further showed that plaintiff in error applied to the mayor for permission to move the building along and across Main Street in the city to another place within the fire limits. The mayor refused the permission, stating that, if the desire was to move it outside of the fire limits, permission would be granted. Notwithstanding the refusal, the plaintiff in error moved the building, using blocks and tackle and rollers, and, in doing so, occupied the time between 11 a.m. and 3 p.m. At the place where the building stood originally, the street was fifty feet from the houses on one side to those on the other, part of the space being occupied by sidewalks, and the balance by the traveled highway. The distance of removal was two hundred and six feet along and across Main Street. Eureka City was and is a mining town, and had and has a population of about two thousand. It was admitted that the building was moved with reasonable diligence.
of conviction he appealed to the supreme court of the state, which court affirmed the judgment, and to the judgment of affirmance this writ of error is directed.
"10. To regulate the use of streets, alleys, avenues, sidewalks, cross-walks, parks, and public grounds."
"11. To prevent and remove obstructions and encroachments upon the same."
The error assigned is that the ordinance is repugnant to the fourteenth amendment of the Constitution of the United States because "thereby the citizen is deprived of his property without due process of law," and "the citizen is thereby denied the equal protection of the law."
Whether the provisions of the charter enabled the council to delegate any power to the mayor is not within our competency to decide. That is necessarily a state question, and we are confined to a consideration of whether the power conferred does or does not violate the Constitution of the United States.
It is contended that it does because the ordinance commits the rights of plaintiff in error to the unrestrained discretion of a single individual, and thereby, it is claimed, removes them from the domain of law. To support the contention, the following cases are cited: Matter of Frazee, 63 Mich. 396; State ex Rel. Garrabad v. Dering, 84 Wis. 585; Anderson v. Wellington, 40 Kan. 173; Baltimore v. Radecke, 49 Md. 217; Chicago v. Trotter, 136 Ill. 430.
With the exception of Baltimore v. Radecke, these cases passed on the validity of city ordinances prohibiting persons parading streets with banners, musical instruments, etc., without first obtaining permission of the mayor or common council or police department. Funeral and military processions were excepted, although in some respects they were subjected to regulation. This discrimination was made the basis of the decision in State v. Dering, but the other cases seem to have proceeded upon the principle that the right of persons to assemble and parade was a well established and inherent right, which could be regulated, but not prohibited or made dependent upon any officer or officers, and that its regulation must be by well defined conditions.
"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common or other grounds, except by the permission of the city government and committee (Commonwealth v. Davis, 140 Mass. 485);"
"beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village"
"on any street or sidewalk (Vance v. Hadfield, 22 N.Y. 858, 1003; 4 N.Y.Supp. 112); giving the right to manufacturers and others to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass.
239); prohibiting the erecting or repairing of a wooden building without the permission of the board of aldermen (Hine v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign to each its place (Vanderbilt v. Adams, 7 Cow. 349); forbidding the occupancy of a place on the street for a stand without the permission of the clerk of Faneuil Hall Market (In re Nightingale, 11 Pick. 168); forbidding the keeping of swine without a permit in writing from the board of health (Quincy v. Kennard, 151 Mass. 563); forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners v. Covey, 74 Md. 262); forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted so to do by the superintendent or his deputy (Commonwealth v. Brooks, 109 Mass. 355)."
In all of these cases, the discretion upon which the right depended was not that of a single individual. It was not in all of the cases cited by plaintiff in error, nor was their principle based on that. It was based on the necessity of the regulation of rights by uniform and general laws -- a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor, and the cases therefore are authority against the contention of plaintiff in error. Besides, it is opposed by Davis v. Massachusetts, 167 U. S. 43.
Davis was convicted of violating an ordinance of the City of Boston by making a public address on the "Common" without obtaining a permit from the mayor. The conviction was sustained by the Supreme Judicial Court of the commonwealth, 162 Mass. 510, and then brought here for review.
The ordinance was objected to, as that in the case at bar is objected to, because it was "in conflict with the Constitution of the United States and the first section of the fourteenth amendment thereof." The ordinance was sustained.
"Section 1. That the following boundaries are hereby established as the fire limits of Eureka City, to-wit, commencing at a point on Main Street of said city, where said street crosses the Union Pacific Railway track. and opposite or nearly opposite, the Keystone Hoisting Works, thence running in an easterly direction along said Main Street to a point where said street intersects the road or street easterly of the site now occupied by the M. E. Church building, the northerly and southerly boundaries of said fire limits to be two hundred feet on each side of said Main Street for said distance."
"SEC. 2. Every building hereafter within the fire limits of said city shall be of brick, stone, iron, or other substantial and incombustible material, and only the following wooden buildings shall be allowed to be erected, except as hereinafter provided, viz.: sheds to facilitate the erection of authorized buildings, coal sheds not exceeding ten feet in height, and not to exceed one hundred feet in area, and privies not to exceed thirty feet in area, and ten feet in height, and all such sheds and privies shall be separate structures: provided, that any person desiring to erect a building of other material than those above specified within said fire limits shall first apply to the committee on building within said fire limits of the city for permission so to do, and if the consent of the committee on building within said fire limits shall be given, they shall issue a permit, and it shall thereupon be lawful to erect such building under such regulations and restrictions as the committee on building within said fire limits may provide."
"SEC. 3. Any wooden building already within said fire limits shall only be altered or repaired in such a manner that neither area nor height be increased without the consent of the said committee on building within said fire limits."
"SEC. 4. The said committee on building within said fire limits shall have the power to stop the construction of any building, or the making of alterations or repairs on any building where the same is being done in violation of the provisions of this ordinance, and any owner, architect, or builder, or others who may be employed, who shall assist in violation or noncompliance with the provisions of this ordinance shall be subject to a fine for every such violation or noncompliance, of not less than ten nor more than one hundred dollars."
"SEC. 5. That there shall be a committee consisting of three members of the council appointed by the mayor and confirmed by the council, to be known as the 'Committee on Building within the Fire Limits of Eureka City,' and that said committee be appointed immediately upon the taking effect of this ordinance."
"SEC. 6. This ordinance shall take effect and be in force from and after its first publication in the Tintic Miner."
Passed and approved June 4, 1894.

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D.C. Law Library - § 22–3008. First degree child sexual abuse.
↪ § 22–3008. First degree child sexual abuse.
§ 22–3007. Defense to sexual abuse.
§ 22–3009. Second degree child sexual abuse.
§ 22–3008. First degree child sexual abuse.
Whoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life and, in addition, may be fined not more than the amount set forth in § 22-3571.01. However, the court may impose a prison sentence in excess of 30 years only in accordance with § 22-3020 or § 24-403.01(b-2). For purposes of imprisonment following revocation of release authorized by § 24-403.01(b)(7), the offense defined by this section is a Class A felony.
This section is referenced in § 22-3011, § 22-3012, § 22-4001, § 22-4502, § 23-113, § 24-112, and § 24-403.01.
D.C. Law 13-302 added the last two sentences.
The 2013 amendment by D.C. Law 19-317 substituted “not more than the amount set forth in § 22-3571.01” for “an amount not to exceed $250,000”.
Sentencing, supervised release, and good time credit for felonies under this section committed on or after August 5, 2000, see § 24-403.01.
For temporary (90-day) amendment of section, see § 7(b) of the Sentencing Reform Emergency Amendment Act of 2000 (D.C. Act 13-410, August 11, 2000, 47 DCR 7271).
For temporary (90 day) amendment of section, see § 7(b) of the Sentencing Reform Congressional Review Emergency Amendment Act of 2001 (D.C. Act 13-462, November 7, 2000, 47 DCR 9443).
For temporary (90 day) amendment of section, see § 7(b) of Sentencing Reform Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-2, February 2, 2001, 48 DCR 2239).
For temporary (90 day) amendment of section, see § 7(b) of Sentencing Reform Second Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-51, May 2, 2001, 48 DCR 4370).
For temporary (90 days) amendment of this section, see § 232(f) of the Criminal Fine Proportionality Emergency Act of 2013 (D.C. Act 20-45, April 1, 2013, 60 DCR 5400, 20 DCSTAT 1300).


text:
Joseph M. TRIHEY, Administrator of the Estate of Maria G.
A. J. Blackman, Los Angeles, Cal., for appellant.
Crider, Tilson & Ruppe, Henry E. Kappler, Los Angeles, Cal., for Transocean Air Lines.
Belcher, Kearney & Fargo, Vernon Foster, Louis E. Kearney, Los Angeles, Cal., for Douglas Aircraft Corp.
Dryden, Harrington, Horgan & Schwartz, Los Angeles, Cal., for Slick Airways.
This is an appeal from a decision of the District Court for the Central District of California in an action in admiralty for the wrongful death of three passengers lost in the crash of an airplane operated by Transocean Air Lines, Inc., a corporation (hereinafter, Transocean), over the Pacific Ocean on July 12, 1953. It arises under the Death on the High Seas Act, 46 U.S.C.A. 761-768 (hereinafter, D.H.S.A.). Exclusive jurisdiction is conferred on the admiralty court. 46 U.S.C.A. 761; Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780. The action is against the carrier, Transocean; the maintenance contractor, Slick Airways, Inc., a corporation (hereinafter, Slick); and the manufacturer of the aircraft, Douglas Aircraft Corporation, Inc., a corporation (hereinafter, Douglas).
Appellant urges that because respondents offered no evidence to explain the cause of the aircraft plunging into the sea, they are liable. Appellant himself offered no evidence to explain the cause of the crash. He offered evidence to show what might have caused it. Defendants offered evidence to show what they knew of the aircrafths maintenance and operation. (Witnesses Carson, Buckalew, Wood, Captain Keating, and Exhibits A to M, inclusive.) The matter then rested with the trial court's conclusion as to where the preponderance of evidence lay. Findings of fact adverse to appellant, supported by conflicting evidence, were filed, as well as appropriate conclusions of law favoring all defendants. We are asked to reverse, as a matter of law.
Most of the 'facts' are uncontradicted, but there is a substantial conflict as to their interpretation on the issue of negligence.
The plane involved was on a flight from Guam to Oakland via Wake Island and Hawaii. It crashed without radio warning of trouble approximately one hundred miles east of Wake Island some time after take-off. Bits of the plane and fourteen unidentified bodies were recovered from the ocean.
Plaintiff introduced much evidence of alleged deviations from Civil Air Regulations, the manuals of the carrier, and approved maintenance procedures; evidence of maximum use of the plane by the carrier from purchase to the time of the crash; alleged fatigued condition of the crew (out of forty-two hours from take-off the crew spent twenty-eight hours on duty, twenty-two hours aloft, and thirteen hours off duty-- at Guam); evidence of allegedly faulty maintenance of the automatic pilot (-- plaintiff strongly implies this was the cause of the crash-- ) and of No. 4 engine; and alleged poor qualifications of one of the co-pilots.
Slick was the original owner of the plane, but had sold it to Transocean in 1952. Slick was the maintenance contractor for the aircraft and had done its last maintenance work approximately three weeks before the crash. There was evidence of Slick's allegedly faulty maintenance and testing of the plane in various particulars.
As to Douglas there was no evidence introduced.
Applicability of Res Ipsa Loquitur.
We agree that res ipsa loquitur is applicable to certain aircraft crash cases. We are unable to determine from the record whether or not the trial judge applied the doctrine in this case. He originally felt it did not apply; he required the appellants to produce their evidence as to defendant's alleged negligence; he stated the applicability of the doctrine was 'still open for consideration at a later date'; he permitted counsel to argue its applicability on final argument and to cite cases at final argument in support of its applicability. The court then gave judgment for defendants without disclosing whether or not he considered res ipsa loquitur applicable.
But whether or not the court applied the doctrine is not controlling on this appeal. This because, were it applied, the trial court was yet required to weigh all the evidence produced. This the court did and made findings adverse to appellants in respect to each defendant's negligence (Findings XXXIII, XXXIV, XXXV); in respect to the airworthiness of the plane and in respect to its maintenance (Findings XXXVI, XXXVII); in respect to the certification of the plane, and the fatigue of the crew (Findings XXIII, XXV, XXVI).
In other words, even if res ipsa loquitur should have been applied by the trier of fact, and was not, the application of that doctrine alone to the facts of this case is not sufficient to require a judgment as a matter of law for plaintiffs. And we cannot agree that either with or without res ipsa loquitur we are required to rule that the clear preponderance of the evidence, as a matter of law, requires a judgment for plaintiffs. The rule followed at one time that trial de novo exists in admiralty appeals is no longer the law. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Western Canada Steamship Co. v. United States, 9 Cir., 1957, 245 F.2d 921, note 2.
We have seen that an action under the 'Death on the High Seas' Act is exclusively triable on the admiralty side of the court. Higa v. Transocean Airlines, supra (230 F.2d 785).
Applying the Jesionowski rule to the facts of the instant case, we first ask, were the persons whose heirs are here suing without fault? There is no evidence one way or another. We know that passengers have become crazed or drunken and attempted to wrest control of airplanes from pilots. We know that individuals have attempted suicide from airplanes and endeavored to take all occupants with them to their death. All this is possible, but certainly not probable. Nor can we presume any such interference in this case. The presumption of the exercise of due care for one's own safety, if it applies to pilots and engineers of airplanes, should with equal or greater cogency apply to passengers. In the absence of all evidence as to conduct, we presume due care was exercised by all passengers.
We next ask, (if we assume the passengers were exercising due care for their own safety, and were therefore without fault, and died as a result of a plane disappearing without warning into the sea) whether there is the basis for a fair inference that, to paraphrase Jesionowski, 'the man who dropped the plane' was negligent? If we knew that it was the pilot who caused the plane to dive into the sea, we think that such an inference of negligence would be a fair one. But apparently no one knows if there was pilot failure, or any human failure, connected with, or that proximately caused, the accident.
'The question presented, therefore, is whether the doctrine of res ipsa loquitur applies where the plane disappears during flight without a trace. The defendant's contention that the doctrine is not applicable to a case such as this is based primarily on the ground that since the plane disappeared without a trace, the defendant can have no knowledge of the cause of the loss of the plane superior to that possessed by the plaintiffs.
'The rule precluding the application of the doctrine where the plaintiff's knowledge is equal to that of the defendant is stated in 65 C.J.S. Negligence 220(5), page 1000 and 38 Am.Juris. 995, Section 299. An examination of the authorities cited in support of the rule however, discloses that it is applied to cases where the plaintiff has equal knowledge or where knowledge of the cause is equally accessible to the plaintiff-- not to cases in which there is an equality of ignorance as in the instant case. Since inability, because of a lack of knowledge, to show specific acts of negligence is a prerequisite to the application of the doctrine itself, it follows that equality of knowledge precludes its application. But from this it does not follow that conversely equality of ignorance will likewise preclude applicability, for the function of the doctrine, as stated in the introduction to Shain's Res Ipsa Loquitur, is to supply a fact, i.e., defendant's negligence, which must have existed in the causal chain stretching from the act or omission by the defendant to the injury suffered by the plaintiff, but which the plaintiff because of circumstances surrounding the causal chain, cannot know and cannot prove to have actually existed. I conclude, therefore, that the rule barring the application of the doctrine where there is equality of knowledge is not applicable to the case at bar. Cf. Weller v. Worstall, 50 Ohio App. 11, 197 N.E. 410, 413.
'Defendant also contends that it did not have exclusive control of the plane because of the requirements prescribed by the regulations of the Civil Aeronautics Board, in consequence of which, it is asserted, some measure of control was in the Board. This is merely confounding control of the plane with regulation by public authority. Cf. Parker v. James E. Granger, Inc., 4 Cal.2d 668, 52 P.2d 226.
'I am of the opinion that the doctrine of res ipsa loquitur is applicable and that the motion to dismiss should be denied. Seaman v. Curtiss Flying Service, 231 App.Div. 867, 247 N.Y.S. 251; Smith v. Pacific Alaska Airways, 9 Cir., 89 F.2d 253; Pacific Alaska Airways v. Mahan, 9 Cir., 89 F.2d 255. Judgment may accordingly be entered for the plaintiffs.' 100 F.Supp. at page 2.
Judge Folta cited in support of the applicability of the doctrine Seaman v. Curtiss Flying Service, 1930, 231 App.Div. 867, 247 N.Y.S. 251; Smith v. Pacific Alaska Airways, 9 Cir., 1937, 89 F.2d 253; and Pacific Alaska Airways v. Mahan, 9 Cir., 1937, 89 F.2d 255.
The last two cases above were apparently not filed in admiralty, inasmuch as the earlier cases did not read the D.H.S.A. as conferring exclusive jurisdiction in admiralty. Powers v. Cunard S.S. Co., D.C.S.D.N.Y.1933, 32 F.2d 720. In the Smith case, where plaintiff proved the plane crashed and then rested, Judge Wilbur assumed without discussion that res ipsa liquitur applied, and that the applicable rule as to res ipsa appears in Gleeson v. Virginia Midland R. Co., 1891, 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458 and Sweeney v. Erving, 1913, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815. In Pacific Alaska Airways v. Mahan, supra, no question of res ipsa loquitur was discussed. In Seaman v. Curtiss Flying Service, supra, there is the bare holding that res ipsa loquitur applies to an unexplained aircraft crash which resulted in the death of a passenger.
Earlier cases, such as Smith v. Pennsylvania Central Airlines Corporation, D.C.D.C., 1948, 76 F.Supp. 940, 6 A.L.R.2d 521, hold res ipsa loquitur applicable to aircraft crashes over land, but observe that the rule 'has never been applied to loss of life at sea.' Id., 943. We may accept Judge Holtzoff's conclusion as of 1948, but since then, as we have seen, the doctrine has been applied at least by this Court of Appeals to loss of life at sea. The doctrine having as 'its first requirement * * * (the) basis of past experience'2 is peculiarly one of growth ordered by quantitative experiences of mankind.
But as much difficulty is caused by the various definitions of what the rule is and what it does, as by the question as to whether it should or can be used.
This view of what res ipsa loquitur is, and what it does, follows the Supreme Court definition. Sweeney v. Erving, supra, '* * * cut through the mass of verbiage built up around the doctrine of res ipsa loquitur.' Jesionowski v. Boston & Maine R. Co., supra, at page 457 of 329 U.S., at page 404 of 67 S.Ct. 'The rule deals only with permissible inferences from unexplained events.' Johnson v. United States, supra, at page 49 of 333 U.S., at page 393 of 68 S.Ct. 'When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.' Sweeney v. Erving, supra, at page 240 of 228 U.S., at page 418 of 33 S.Ct.
In the instant case there was no jury. The trier of facts was the trial judge. Whether or not he considered the doctrine of res ipsa loquitur helpful and therefore applied it, we do not know, but whether he did or did not, he heard the evidence produced by each side and found the preponderance favored the defendants. We cannot say as a matter of law that had the rule been relevant and applicable here it could by itself require or sustain a verdict for plaintiff.
The facts of an unexplained crash into the ocean may warrant an inference of negligence, but do not compel that inference.6 Nor can we try the case de novo. Our duty is to see that the trial court's conclusion as to the facts was not clearly erroneous. Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A. We are satisfied here that it was not clearly erroneous.
We do not meet the problem of whether the essential of exclusive control of the instrumentality involved was proved to the satisfaction of the trial court,7 nor whether the airline operator can by the use of independent contractors delegate his duty of adequate maintenance of the plane. Cf. De Vito v. United Air Lines, Inc., D.C.E.D.N.Y.1951, 98 F.Supp. 88.
What we have said above disposes of appellant's fourth point, that the District Court erred in various findings. We come to appellant's fifth and last claimed error, the failure of the trial court to make findings disposing of appellant's claims for loss of baggage and refund of fares paid.
Appellant urges that only one cause of action exists for all pecuniary loss, which includes cost of transportation paid and the value of baggage lost. Appellees urge that this is solely a death statute and the pecuniary loss must be sustained by the persons for whose benefit the suit is brought. Appellant cites no cases; appellees but one, denying recovery of funeral expenses (The Culberson, 3 Cir., 1932, 61 F.2d 194). The right of plaintiff to sue here depends on statute. The statutory right is for the benefit of those named by statute-- wife, husband, minor child, or dependent relative. These may or may not be the beneficiaries of decedent's estate. Any recovery of fare paid, or baggage lost, would inure only to the benefit of decedent's estate-- not necessarily to those whom the statute specifies. We find no cases directly in point. Were it essential in this case, we could conclude that the personal representative, suing only under the D.H.S.A., had no cause of action for funeral expenses, fare paid, or baggage lost. But in view of the lower court's finding of no liability, which we do not disturb, the failure to find on this issue cannot be substantial or prejudicial error.
We have considered above the liability of the carrier, Transocean Air Lines, Inc. In considering the liability of Slick, we meet head on the issue touched upon above (see note 7)-- 'exclusive control,' and the divided responsibility of Slick Airways, Inc. and Transocean for the proper maintenance of the plane. There seems little question but that on this record we could not hold as a matter of law that Slick had exclusive control over the plane so as to render res ipsa loquitur applicable. To consider holding Slick liable would at least require some proof that a failure to maintain the plane in proper mechanical condition was a proximate cause of the crash. This factual issue has been decided by the trial court adversely to appellant.
In considering whether the trial court was 'clearly erroneous' in the conclusions to which it came upon weighing all the evidence, we must keep in mind that every inference and intendment favors the position of appellees. We cannot re-examine or re-weigh the evidence, but this is what appellant would have us do with respect to the disputed matters of pilot training, pilot fatigue, and, most particularly, auto pilot maintenance and malfunction.
Finally, we are asked to find the manufacturer of the plane, Douglas Aircraft Corporation, Inc., liable. This position is not seriously urged by appellant. The trier of fact found no negligence existed on the part of Douglas, and we agree there was none.
The judgment is affirmed as to all defendants.
'We think the circumstances of this (Johnson) case are not 'such as to justify a finding that this (accident) was a result of (appellant's) negligence." 160 F.2d at page 793.
'We do not think that the falling of a block during a 'rounding in' operation is an accident which is 'ordinarily the result of negligence' such as a derailment in the Jesionowski case, supra.' 160 F.2d at page 794.
'No act need be explicable only in terms of negligence in order for the rule of res ipsa loquitur to be invoked. The rule deals only with permissible inferences from unexplained events. * * * The inquiry, however, is not as to possible causes of the accident but whether a showing that petitioner was without fault and was injured by the dropping of the block is the basis for a fair inference that the man who dropped the block was negligent. We think it is, for human experience tells us that careful men do not customarily do such an act.' 333 U.S. at pages 48, 49, 50, 68 S.Ct. at page 393.
'The progress of aviation has been rapid. In the course of comparatively few years, it has reached a point at which a host of transport airplanes flying according to fixed schedules over a network of permanent routes, carry thousands of passengers annually. Airplane lines vigorously compete with railroads and steamships. Those responsible for the remarkable and swift growth and development of aviation can justifiably boast of a superb record of unparalleled and rapid achievement and success. Accomplishment must be accompanied by responsibility. No reason is discernible why the principles that govern the liability of other common carriers, such as railroads, should not be equally applicable to transport airplanes operating as common carriers.
'The following cases hold to the same effect: Genero v. Ewing, 176 Wash. 78, 28 P.2d 116; Smith v. Pacific Alaska Airways, 9 Cir., 89 F.2d 253; Seaman v. Curtiss Flying Service, 231 N.Y.App.Div. 867, 247 N.Y.S. 251.
'The same result has been reached by the courts of Ontario and Manitoba, Malone v. Trans-Canada Airlines, Ontario, 1 Avi. 1028, 1030; McInnery v. McDougall, 47 Manitoba 119, 1 Avi. 718, 721; Galer v. Wings, 47 Manitoba 281, 1 Avi. 778, 782.
'There are a number of decisions in which the courts have declined to apply the doctrine of res ipsa loquitur to airplane accidents: Morrison v. Le Tourneau Co., 5 Cir., 138 F.2d 339; Cohn v. United Air Lines Transport Corporation, D.C.D.Wyo., 17 F.Supp. 865; Herndon v. Gregory, 1935, 190 Ark. 702, 81 S.W.2d 849, 82 S.W.2d 244; Wilson v. Colonial Air Transport, Inc., 1932, 278 Mass. 420, 180 N.E. 212, 83 A.L.R. 329; Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442; Boulineaux v. City of Knoxville, 20 Tenn.App. 404, 99 S.W.2d 557; Budgett v. Soo Sky Ways, 64 S.D. 243, 266 N.W. 253.
'With the exception of Smith v. Whitley, supra, none of these cases, however, involved a common carrier. In each instance, the plane was either a private plane or was on a test flight. In Smith v. Whitley, supra, it did not appear whether the airplane was a common or private carrier.
'The foregoing considerations inescapably lead to the conclusion that the doctrine of res ipsa loquitur should be deemed applicable to accidents involving airplanes operating as common carriers.' 76 F.Supp. at page 495.

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