In this action for negligent injury resulting in death of plaintiff’s intestate, nonsuit was allowed on demurrer to the plaintiff’s evidence, and the defendant was, therefore, not under the necessity of offering any. Decision requires consideration only of the nonsuit, which gave plaintiff’s case the coup de grace. The trial judge gave no intimation as to the basis of his ruling, and it is, therefore, referable to any reason which may justify it. The defendant-appellee suggests several, any one of which, it is contended, will support the judgment: That the evidence contains no inference of negligence on the part of the pilot in charge; that the pilot, Bobbitt, was not at the time, and for the purpose undertaken, an employee or agent of the defendant, so as to make the latter liable on the principle respondeat superiorj that the plaintiff is barred from recovery by his assumption of the risk in participating in an *185obviously dangerous maneuver; that he was contributorily negligent; and that he invited or willingly suffered the injury resulting in death, (“volenti non fit injuria”).
We consider these questions, perhaps not in order, hut as they are touched by the evidence.
The evidence tends to show that Bobbitt was an employee of the defendant and as such was given complete charge of the plane which operated in the air show, or demonstration. O’Neal, the president of the defendant company and the manager of this enterprise, testified that Bobbitt was selected by the defendant for this purpose. This is sufficient to raise an inference of agency. Mecham on Agency, (2d Ed.), sec. 1859; Irwin v. Judge, 81 Conn. 412; Hill v. Morey, 26 Vt. 178; 57 C.J.S., Master & Servant, sec. 563.
The circumstances under which Bruce entered the plane also raise the inference that the pilot was authorized to take him up and owed to him the duty, imputed to the defendant, to refrain from negligent injury. The invitation was extended to Bruce by Bobbitt within the hearing of O’Neal and its significance was at once apparent. It did not require the spoken word, merely his silent acquiescence to give authority. Wright v. Wright, 229 N.C. 503, 506, 50 S.E. 2d 540; Russell v. Cutshall, 223 N.C. 353, 26 S.E. 2d 866; Hayes v. Creamery, 195 N.C. 113, 141 S.E. 340; Fry v. Utilities Co., 183 N.C. 281, 111 S.E. 354; Schwartz, Trial of Automobile Cases, sec. 373.
The measure of defendant’s duty is that of ordinary care. Wright v. Wright, supra. The above citations are concerned with automobile law but Agency, the measure of negligence, and other principles discussed are equally applicable to the law of aviation. Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 425, 23 N.C.C.A. (N.S.) 384; Bird v. Louer, 272 Ill. App. 522; Rogina v. Midwest Flying Service, 325 Ill. App. 588, 60 N.E. 2d 633; Interstate Airlines v. Arnold, 127 Neb. 665, 256 N.W. 513; Apartan Aircraft Co. v. Jamison, 181 Okl. 645, 85 P. 2d 1096; 2 C.J.S., Aerial Navigation, sec. 19, p. 907.
The legal sufficiency of the evidence to go to the jury is more strongly challenged in two respects: It is contended that the testimony of expert witnesses concerning the crash of the plane and its cause is merely guesswork, without probative force, and does not rise to the dignity of evidence; and that, at any rate, there is no evidence to determine which of the occupants of the plane — whether the pilot put in official charge, or Bruce, who entered as a passenger — had control at the time of the spinning maneuver which resulted in the crash and death of Bruce.
While the cross-examination elicited answers from the witnesses giving expert opinions as to the operational failure led to answers which appellee construes as withdrawing their statements, it may be conceded there were *186some assumptions, that part of tbis evidence was directed to the circumstance that they could not, and did not, see what took place inside the cockpit, and had made some assumptions as to who was in charge. We cannot find that in any place they withdrew their statements as to the fault in conducting the maneuver, regardless of whether Bobbitt or Bruce was at the controls.
O’Neal, the president of the flying service and manager of the demonstration, after testifying to the agreement which was made between the three pilots, himself, Bobbitt and Bass, made for reasons of safety, testified that flying in Y formation he watched every movement of Bobbitt’s plane from its top altitude down to the ground, and counted the turns; and testified in this respect as follows: “At a height of 1,800 feet Mr. Bobbitt, being No. 1, he started on his spin. I noticed him when he started to spin, and he spun and spun, and it appeared to me that he went into a tight spiral, that is a maneuver that you wouldn’t know from a spin, hardly, in seeing it from the ground; you would think it was the same thing. It appeared to me that he went into a tight spiral, and he made five and a half turns — I counted them — then he struck the ground . . . straight in, nose down . . . still curving,” . . . and apparently “made no effort whatever to recover.” For the sake of safety “he should have completely recovered and gone into a normal, straight flight at least 500 feet above the ground.”
In stating that he had 15 years’ experience in operating airplanes and observing their operation, he testified, “My opinion was that the pilot demonstrating the spin just overdid it a little bit too much . . . apparently he tried to make it too good. He just went too low.” He further testified that from the elevation at which Bobbitt began the spin only about three turns could have been made with safety and that the pilot was not more than 50 or 100 feet from the ground when he went into the fourth or fifth spin.
Smith v. Whitley, 223 N.C. 534, 27 S.E. 2d 442, has no application whatever to the facts of this case. In that case neither the pilot nor the passenger was killed, and both testified. The plaintiff Smith testified “that the plane went into a spin and crashed and I don’t know why.’,’ The pilot Nelson testified, “I don’t know just why the plane crashed. It just came down in a spin with the nose to the ground.”
It will be seen from this short per curiam opinion that the plaintiff really based his case on the fact that the pilot was unlicensed and, of course, failed to show this as a proximate cause of the injury.
In the instant case the spin was not accidental; it was a planned maneuver and there is evidence to be submitted to the jury as to the negligence of the operation which caused the crash.
*187That question, that is, whether Bobbitt was at the controls and responsible for the movements of the plane, is not without supporting evidence. Permissible inference that Bobbitt was at the controls at the time may be made from the attending circumstances although no eye saw what took place in the cockpit. Bobbitt was put in official charge of the plane and its operation, in the forward seat of the cockpit. Bruce entered as a passenger. It is hardly conceivable that their relative positions as passenger and pilot changed during the maneuver since Bobbitt was selected for that purpose and the responsibility placed upon him. There is a strong inference that he continued the operation of the plane during maneuvers. It is in evidence that to cause the oscillating or circular movement of the plane the pilot would have to pull the stick back to the seat, or almost to the seat, and push with extended leg, either the right pedal or the left pedal, according as a right turn or a left turn was desired; and that in this position the person in the rear seat, if minded to take control, could not wrest control from the man in front, except with difficulty, and one witness stated, perhaps not at all.
The rule requires us to consider the evidence and all its inferences in the most favorable' light for the plaintiff. Mere imaginative or speculative possibility as to what may have occurred is not sufficient to overcome the inferences raised by this evidence, or the permissible inference that Bobbitt was in control.
Under the evidence the plea of assumption of risk is not tenable. We cannot assume, against the evidence before us, that the enterprise on which Bruce accompanied the pilot Bobbitt, even if known to him in advance, (and of this there is no evidence), involved such an obvious or imminent danger to life and limb as to require an ordinarily prudent man to refrain from participating in it. In so far as the flight itself is concerned, it is recognized as a convenient mode of travel, regularly and extensively used, and reasonably safe. The evidence, without any witness stating contra, tends to show that the plane in which the demonstration took place was fit and suitable for the purpose; and that the maneuver .itself was normal and safe in the hands of a careful pilot.
The contention that plaintiff is barred from recovery because his intestate negligently contributed to his own death cannot be maintained here as a matter of law on the present state of the evidence. If addressed to the suggestion that Bruce may have been in control of the plane at the time of his injury, there is no evidence of that fact. If advanced on the theory that he voluntarily participated in the maneuver, as suggested, being executed at the time of his injury and death, as we have already stated in dealing with the question of assumption of risk, the evidence tends to show that the operation under way at the time was not of a *188character which would attribute negligence to a reasonably prudent man in engaging in it.
The pleas of assumption of risk and contributory negligence are both affirmative and require a showing on the part of the defendant to be considered at all; and to prevail as a matter of law, as to either, it must plainly appear from the evidence that a reasonable mind could draw no other inference.
As we have stated, assumption of risk and contributory negligence are affirmative pleas and ordinarily must be left to the jury. We find no evidence in support of either plea that would justify the court in taking it from the jury.
Our task as an Appellate Court is merely to judge of the probative value of the evidence and not its weight; to say whether there is a legal sufficiency in its inferences to be submitted to the jury. Applying these principles of law, we conclude that there was error in withdrawing the evidence from the jury, and the order of nonsuit is, therefore,