Brenard Austin, Minor, by His Next Friend, Brenard Austin, Sr. v. John T. Kesselring

437 F.2d 704, 141 U.S. App. D.C. 271, 1970 U.S. App. LEXIS 5840

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 23, 1970
• Docket: 23765
• Status: Published

Opinions

MATTHEWS, Senior District Judge:

This is an action brought to recover damages for personal injuries sustained by Brenard Austin, a minor, as the result of colliding with an automobile operated by the defendant. At the conclusion of the plaintiff’s evidence, the court directed a verdict in favor of the defendant on the ground that there was no showing of negligence on his part, and this appeal followed.

The record discloses this: The accident occurred in the 6200 block of Kansas Avenue in Northeast Washington about 47 feet south of the south line of Sheridan Street. The day was clear and cold and the street dry. From curbline to curbline at the place involved Kansas Avenue is 44 feet wide. At the time of the accident, however, cars were parked at the curb on each side of Kansas Avenue, leaving only one lane for traffic headed north and one for southbound traffic.

Initially the defendant was proceeding north along Kansas Avenue at about 25 miles an hour. Intending, upon reaching the intersection of Kansas Avenue and Sheridan Street, to make a right turn onto Sheridan Street, the defendant put on his right directional signal and commenced to slow down. Thereafter at a distance of about 100 feet and seconds before the accident, the defendant saw the minor standing on the west sidewalk of Kansas Avenue. He then gave no indication of a purpose to leave the sidewalk. However, when the car operated by defendant was within 50 or 60 feet of the minor he darted off the sidewalk and began a hard, fast run in a somewhat diagonal course from the west toward the east side of Kansas Avenue. He crossed the lane for southbound traffic and moved into the lane for northbound traffic.

Observing the minor dart off the sidewalk and start his dash across Kansas Avenue, and with his brakes already on, the defendant “hit” his brakes and started to veer off to the right to give the minor more room but there was not enough space due to the curbside parking of other cars. The minor, advancing rapidly toward the defendant’s vehicle but looking in another diection, ran into the left front side of the vehicle, cracking the bone in his left leg, and falling beside the car.

The defendant laid down skid marks of 32 feet before his car came to rest less than half a car length after the collision. The defendant was the only eyewitness called by the plaintiff and he testified that he “was almost at a dead stop when [the minor] hit [the car].” The minor testified in his own behalf. He gave his age as 12 years at the time of the accident.¹ He stated that prior to the accident he looked in both directions but did not see the car operated by the defendant. The minor’s home was on the east side of Kansas Avenue. He had gone to the west side thereof seeking to have a friend join him in watching a television show then in progress in his home. Not locating his friend, the minor at the time of the collision was rushing home to resume his television viewing.

An officer of the Traffic Division, Metropolitan Police, was asked the following hypothetical question by plaintiff’s counsel:

“If this defendant were travelling between 20 and 25 miles per hour and he noted the danger of the pedestrian approximately 60 feet away, at that rate of speed and considering this defendant with his reaction time, in how many feet would it have taken the defendant to have stopped his vehicle, bringing it to a complete stop?”

To this hypothetical question the witness responded: “Approximately 57 feet.” Of course, the purpose of the hypothetical question was to show that the defendant could have stopped his car in 57 feet, thus avoiding the accident. While the assumption in the hypothetical question was that when the minor darted off the sidewalk the distance between the minor and the car of defendant was “approximately 60 feet,” in the only testimony as to this distance it was estimated at 50 feet or 60 feet. Obviously, if the distance was 50 feet the defendant could not have avoided the accident when he needed “approximately 57 feet” within which to stop his car. If the distance was “approximately 60 feet”, then in the nature of things, this distance was shortened in some degree by the minor himself when he ran on a diagonal course toward the approaching car.

In granting the motion for a directed verdict for the defendant, the trial judge indicated that construing the evidence most favorably to the minor and giving him the benefit of all reasonable inferences

“there just isn’t one scintilla of evidence of negligence on the part of this defendant.

«-x- * -x- gut you cannot take an estimated distance given by the driver, or an estimated speed, and hold him to that within two or three feet or within a fraction of a second. Normal people just simply can’t judge distances and judge times in that fashion.” Tr. p. 95.

“* * * [I]t seems inescapable from the evidence that this man was coming down the street, this defendant in a reasonably prudent and careful manner, and that this young man just suddenly darted out from the curb át full speed and ran into the side of him.” Tr. p. 96.

“* * * j see nothing about last clear chance in this case * * Tr. p. 97.

“At a time when it became apparent that this child was in danger, which is at the time he took off from the curb at full speed, I know of nothing that this defendant could have done to have avoided the accident.” Id.

We conclude that the trial court was correct in directing a verdict for the defendant.

Affirmed.

1 . The minor was referred to as “retarded,” and being one year behind his contemporaries in school.