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Facts

OPINION BY: MORRIS On 3 August 1975 a Piper 180 Arrow airplane crashed immediately after takeoff from the Boone-Blowing Rock Airport. Killed in the crash was the pilot, Fred Heath; his wife, Jonna; their son, Karl; and a family friend, Vance Smathers. Valerie Heath, a daughter of Fred and Jonna Heath, and sister of Karl, became the sole survivor of the Heath family. This action was instituted by Richard E. Heath as ancillary administrator of the estates of Jonna and Karl Heath against (1) Swift Wings, Inc., the corporate owner of the aircraft, on the grounds of agency; (2) the four shareholders of Swift Wings, Inc. -- Fred Heath, Frank Kish, Richard Kish, and Kermit Rockett -- alleging they actually constituted a de facto partnership, and (3) The Bank of Virginia Trust Company, Executor of the Estate of Frederick B. Heath, Jr. Plaintiff's evidence, except to the extent it is quoted from the record, is briefly summarized as follows: Mary Payne Smathers Curry, widow of Vance Smathers, observed the takeoff of the Piper aircraft shortly after 5:00 o'clock on 3 August 1975. She observed Fred Heath load and reload the passengers and luggage, apparently in an effort to improve the balance of the aircraft. He also "walked around [the airplane] and looked at everything . . . She remembers seeing him and thinking that he's doublechecking it to be sure no one has slashed the tires." The airplane engine started promptly and the plane was taxied to the end of the runway where it paused for approximately five minutes before takeoff. The airplane came very close to the end of the runway before takeoff. However, "[t]he engine sounded good the entire time, and she did not recall hearing the engine miss or pop or backfire." After takeoff, the airplane "gained altitude but it didn't go up very high" and then "leveled off pretty low". Joe Shuford testified that he resides in a house approximately 2,000 feet from the end of the runway from which the Piper aircraft took off. The house overlooks a cornfield which is beneath the path of aircraft departing the runway. He heard the aircraft taking off and "remarked to his wife that it seemed like it was taking a long time for the airplane to get down the runway." When the plane came in sight it was "bobbing up and down like a 'yo-yo' just above the corn. He saw the plane touch into the corn twice. The engine sounded like it was having a hard time flying." The landing gear was up. As the plane approached a set of power lines extending across the cornfield, it lifted several feet and he heard a loud "pop". The aircraft then passed between two power poles, made a right bank, the left wing struck a tree, and the aircraft continued down the valley without gaining any altitude. The plane eventually crashed near a set of power lines with which the plane apparently collided on Holiday Hills Road. William B. Gough, Jr., a free-lance mechanical engineering consultant and pilot, testified concerning the operation and flight performance of the Piper 180 Arrow. He testified concerning the many factors affecting the takeoff capabilities of the Piper and the calculations to be made by the pilot before takeoff, utilizing flight performance charts. He testified that in his opinion, according to his calculations, the pilot should have used flaps to aid in the takeoff. Furthermore, he stated that in his opinion the reasonably prudent pilot should have made a controlled landing in the cornfield shortly after takeoff if he were experiencing difficulty attaining flight speed, and that if he had done so Jonna Heath and Karl Heath would have survived. After the customary motions at the conclusion of all the evidence, the case was submitted to the jury upon voluminous instructions by the trial court. The jury returned a verdict answering the following issue as indicated: "1. Was Fred Heath, Jr., negligent in the operation of PA -- 28R 'Arrow' airplane on August 3, 1975 as alleged in the complaint?" Answer: "No". Plaintiff appeals assigning error to the exclusion of certain evidence and to the charge to the jury. Assignment of error No. 4 is directed to the trial court's charge concerning the definition of negligence and the applicable standard of care: "Negligence, ladies and gentlemen of the jury, is the failure of someone to act as a reasonably and careful and prudent person would under the same or similar circumstances. Obviously, this could be the doing of something or the failure to do something, depending on the circumstances. With respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances." It is a familiar rule of law that the standard of care required of an individual, unless altered by statute, is the conduct of the reasonably prudent man under the same or similar circumstances. . . . While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. . . . The trial court improperly introduced a subjective standard of care into the definition of negligence by referring to the "ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances." We are aware of the authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. . . . Indeed, our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. . . . Furthermore, the specialist within a profession may be held to a standard of care greater than that required of the general practitioner. . . . Nevertheless, the professional standard remains an objective standard. For example, the recognized standard for a physician is established as "the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice." Such objective standards avoid the evil of imposing a different standard of care upon each individual. The instructions in this case concerning the pilot's standard of care are misleading at best, and a misapplication of the law. They permit the jury to consider Fred Heath's own particular experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all pilots. The plaintiff is entitled to an instruction holding Fred Heath to the objective minimum standard of care applicable to all pilots. This matter was well tried by both counsel for plaintiff and counsel for defendants, and several days were consumed in its trial. Nevertheless, for prejudicial errors in the charge, there must be a New trial.