Capital Transit Co. v. Grimes

164 F.2d 718, 82 U.S. App. D.C. 393, 1947 U.S. App. LEXIS 2926

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 24, 1947
• Docket: No. 9327
• Status: Published

Opinions

CLARK, Associate Justice.

This is an appeal from a verdict and judgment of the District Court of the United States for the District of Columbia in favor of appellee, plaintiff below, in an action for damages for personal injuries. The trial judge, in his charge to the jury, gave an instruction on the doctrine of last clear chance. Appellant contends this was error.

Only recently we stated that, “The doctrine presupposes a perilous situation created or existing through the negligence of both the plaintiff and the defendant, but assumes that there was a time after such negligence had occurred when the defendant could, and the plaintiff could not, by the use of means available, avoid the accident. It is not applicable if the emergency is so sudden that there is no time to avoid the collision, for the defendant is not required to act instantaneously.” ¹ We think that what we said in the Dean case applies here.

Appellee was struck by one of appellant’s streetcars as she was crossing Pennsylvania Avenue at 12th Street, Northwest, Washington, D. C., as she was on her way to work on the morning of January 9, 194S, at about 8:30 o’clock, a. m. She had alighted from a westbound streetcar at 12th Street for the purpose of crossing Pennsylvania Avenue to the south to reach a bus terminal in front of the Old Post Office Building. She had proceeded across the westbound track and had almost cleared the eastbound track when she was struck by an eastbound streetcar.

It is clear that the eastbound car entered the 12th Street intersection on the green light and that at some time when the car was in the intersection the light changed to amber and five seconds later to red. Appellee testified that she remained on the loading platform after alighting from the westbound car until she saw the light controlling east-west traffic change from green to amber, that she then waited until she heard the policeman’s whistle and then started south across the tracks without further looking at the traffic light. She stated that she left the platform from the west end and walked south in about the center of the marked pedestrian lane or cross-walk. When she got to a point near the center of the eastbound track she was attracted to the approaching eastbound car by the clanging of its bell. She testified that the car was then about three and one-half feet from her. Her testimony following was that she turned and ran down the track in the same direction the car was going, to avoid being hit. A projecting ridge on the right front side of the car struck her in the right buttock. Other witnesses, who saw appellee just as she was hit, testified that at the time she was struck she was running south in the area prohibited to pedestrians, to the east of the marked crosswalk.

The testimony of the police officer on duty at the intersection, and of the motorman of the eastbound car, was that the eastbound car started passing a westbound car (the one from which appellee had alighted and which also proceeded into the intersection on the green light), at some point near the center of the intersection.² The motorman testified that this westbound car obstructed his view of the westbound track where appellee was crossing, and that she was about ten feet away when he first saw her. The police officer, who was standing just south of the eastbound track near the pedestrian cross-walk on the east side of 12th Street, testified that he did not see appellee until just as she was struck by the car. Witness Bayless, who was crossing Pennsylvania Avenue in a northerly direction on the east side of 12th Street, testified that just before she reached the safety zone at the south of the east bound track she saw the eastbound car approaching and waited in the safety zone for it to pass, and that she did not see appellee until just prior to the instant the car struck her.

The evidence establishes that the eastbound streetcar was traveling at a speed of from ten to twelve miles per hour, and that the motorman, upon seeing the appellee in her perilous position, exercised every means available to him to avoid the accident by sounding his warning gong and applying the emergency brakes.

As in the Dean case, we do not here find any “evidence tending to show that” the motorman “saw, or in the exercise of reasonable care and prudence should have seen” the appellee in sufficient time to avert the accident by the use of means available to do so. Accordingly, the trial court committed reversible error in instructing the jury on the applicability of the last clear chance doctrine. We recognize the “oblivious to danger” aspect of this doctrine, but find no occasion for its application here.

We find nothing in the record to support appellee’s contention that appellant is estopped from objecting to the court’s instruction on this doctrine under our holding in Washington Ry. and Elec. Co. v. Upperman.³ We think the cases are clearly distinguishable.

Reversed.

1 Doan v. Century Motors. Inc., et al., 1946, 81 U.S.App.D.C. 9. 154 F.2d 201. 202.

2 Appellee’s testimony as to the position of this westbound car at the time she left the platform is of no value. At ., one point she said that it had departed and had cleared the intersection, while at another point she said that she did not remember just where it was.

3 47 App.D.C. 219, 227.