Burke v. District of Columbia

42 App. D.C. 438, 1914 U.S. App. LEXIS 2309

• Court: District of Columbia Court of Appeals
• Decided: November 2, 1914
• Docket: No. 2674
• Status: Published

Opinion

Mr. Justice Kobb

delivered the opinion of the Court:

Counsel for the defendant concede that it is the duty of the municipality to keep its streets reasonably safe for passage in the ordinary modes, and to that end to use reasonable care to keep them free from such obstructions and holes or excavations as will be likely to render their use hazardous to one exercising due care. Such is the law. District of Columbia v. Boswell, 6 App. D. C. 402; District of Columbia v. Harper, 40 App. D. C. 568; District of Columbia v. Wood, 41 App. D. C. 101.

It may be conceded that what would amount to negligence in maintaining a much-traveled street in a populous city might constitute ordinary care in a country district; in other words, that the question of negligence depends upon the attendant facts and circumstances. The accident in the present case, however, so far as the evidence discloses, occurred upon a macadamized' street, “constituting a main thoroughfare,” and in a populous part of the District. It was conceded in the argument at bar that the legal rate of speed for automobiles over this street at the point of the accident is 15 miles an hour. The evidence in behalf of the plaintiff tended to show that the automohile in which the decedent was riding was not moving faster than the legal rate of speed. Can it be said, as matter of law, that the street at the point in question, notwithstanding this trench, was in a reasonably safe condition ? Can it be said that the question is one about which reasonable men ought not to differ ? It must be remembered that this was not a dirt road, but hard and smooth on either side of the depression. It also must be remembered that automobiles are in common use and constitute an ordinary mode of travel. The driver of this automobile, not knowing to the contrary, had a right to assume that the street was in reasonably safe condition. District of Columbia v. Haller, 4 App. D. C. 405. He also had a right, as we have said, to proceed at a rate of speed not exceeding 15 miles an hour. He says that in passing over this depression he was not exceeding that rate of speed, and yet the jolt of the car was sufficient to cause the decedent to fall from it. It was in evidence that wagons, presumably driven at a far less rate of speed, were much jarred in passing over this depression, and its effect upon 'both wagons and automobiles had been noticed and commented upon by several. Having all these facts and circumstances in mind, we think it clear that the question whether this street, at the time and at the point of the accident, was in a reasonably safe condition, should have been submitted to the jury; in other words, that it is a question about which reasonable men might differ.

We are equally convinced that the question as to whether the decedent was guilty of contributory negligence was likewise a question for the determination of the jury. ¡He was sitting on a wide and securely fastened box, with an upright standard within reach, and, for aught that he knew, the truck was to pass over smooth city streets, at least over streets in a reasonably safe condition. The cases relied upon by the defendant upon this point are not apjiosite. In Baltimore & P. R. Co. v. Jones, 95 U. S. 439, 24 L. ed. 506, the plaintiff had attempted to ride on the pilot of a locomotive, while in St. Louis & S. F. R. Co. v. Schumacher, 152 U. S. 77, 38 L. ed. 301, 14 Sup. Ct. Rep. 479, the plaintiff was riding on the side of a flat car. In both cases, it will be seen the positions assumed were obviously and inherently dangerous. A freight train usually is composed of many cars, is long and cumbersome, and not easily controlled. It is liable to sudden jolts, and its speed usually is greater than the legal rate of speed at the point of this accident. An automobile is a single car, easily and quickly controlled, and primarily designed and used for carrying passengers. Certainly if it is not negligence per se for a passenger to ride on the running board of a street car (Koontz v. District of Columbia, 24 App. D. C. 59) it would be going far to rule, as matter of law, that the position occupied by the decedent at the time of the accident was so obviously and inherently dangerous as to constitute contributory negligence on his part.

Without intending to invade the province of the trial court, we may suggest whether the interests of justice will not be better subserved, where the evidence has been taken in a jury case, by the submission of the issues of fact to the jury, that the case may be finally determined in this court. If such a practice is followed, the necessity of a retrial frequently will be overcome. In McNamara v. Washington Terminal Co. 37 App. D. C. 384, where the trial court had ignored the suggestion of counsel for the plaintiff that the verdict of the jury be taken subject to the opinion of the court, this court, through Mr. Justice Van Orsdel, said: “It is urged by counsel for plaintiff that the verdict of the jury should have been taken subject to the opinion of the court. There is great force in this contention. Rule 52 of the supreme court of the District of Columbia provides for just such an emergency as confronted the trial court in this case. No injury nor injustice could have been inflicted upon the defendant had this course been pursued. As it is, the entire expense and delay attendant upon a new trial will again have to be incurred.”

The judgment is reversed, with costs, and the cause remanded.

Reversed and remanded.