Charles Franklin Johnson v. Bernard Geffen

294 F.2d 197

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 6, 1961
• Docket: 15724_1
• Status: Published

Opinions

PRETTYMAN, Circuit Judge.

This is a motor vehicle accident case. Our appellant Johnson was the plaintiff.¹ At the time of the accident he was a pedestrian. He was struck by a motor cycle being operated by our appellee Geffen, a Metropolitan Police officer on motor cycle duty.² The action went to trial before a jury. At the conclusion of the plaintiff’s case the trial judge directed a verdict for the defendant. We are of the opinion that he erred.

The accident occurred at the intersection of Georgia Avenue and Barry Place, Northwest. Mr. Johnson testified that he alighted from a southbound streetcar and walked across the ear tracks. East of the tracks and in the lane of northbound traffic, he was struck by the motor cycle officer, who was southbound. Precise details of Mr. Johnson’s movements are shown in the testimony, but for present purposes it is unnecessary to recite them.

The first point on appeal stems from the presence of the defendant officer on the left side of the roadway. The question is whether the plaintiff made out a prima, facie case within the scope of the pretrial order, which incorporated the plaintiff’s pretrial statement. Mr. Johnson’s counsel offered in evidence certain traffic regulations, one of which provided:

“Sec. 30. Further Limitations on Driving to Left of Center Roadway.

“(a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

* * * -x-

“2. When approaching within 100 feet of or traversing any intersection or railroad grade crossing.” ³

No objection was made to the admission of this regulation.

The facts we have related are not disputed. Mr. Johnson, headed east, had crossed the northbound car tracks and so was within that portion of the street allotted to northbound traffic; the motor cycle officer was southbound and was therefore on the side of the roadway to his left. The dispute revolves not about the facts or the consequences thereof but about the pretrial statement of plaintiff Johnson, adopted, as we have said, and made part of the pretrial order in the case. The dispute is whether negligence by driving on the left side of the roadway was or was not an issue in the case. The pretrial statement of the plaintiff, in so far as here pertinent, was:

“Facts of the Occurrence

“On February 11, 1957 at about 8:15 A.M. the male plaintiff, C. Frank Johnson was struck by a motorcycle owned by the District of Columbia and operated by its agent a policeman, the co-defendant, Bernard Geffen. The accident occurred at the intersections of Georgia Avenue and Barry Place, N. W., Washington. The plaintiff had alighted from a southbound streetcar at Georgia and Barry and was in the process of crossing Georgia Avenue when struck. The motorcyclist, who was southbound was across the center line into the northbound lanes when he struck the male plaintiff.

“Negligence Alleged

“1. Failure to give full time and attention.

“2. Failure to sound a warning.

“3. Excessive speed.

“4. Rely upon the doctrine of ‘last clear chance.’ ”

The defendant-appellee officer says that in the foregoing statement no negligence was alleged concerning his being on the left side of the roadway and that therefore no such issue was presented for trial. The trial judge agreed with that view.

The pretrial procedure provided by Rule 16 of the Rules of Civil Procedure, 28 U.S.C., was designed to provide, inter alia, a clear statement of the issues to be tried. We had occasion to discuss this matter in Meadow Gold Products Co. v. Wright,⁴ and we here by reference iterate the comments which we there made.

The pretrial statement in the case at bar has two parts, under separate headings, one a statement of facts and the other a succinct tabulation of “negligence alleged”. But the two parts do not appear to fit together. The sole basis for a charge of negligence in the statement of facts is the last sentence, which says that the motor cyclist, southbound, was in the northbound lanes when he struck the plaintiff. On the other hand, in the tabulated and numbered specifications of “negligence alleged”, no reference to the defendant’s being on the wrong side of the street appears. The allegations of negligence include failure to give full time and attention, failure to sound warning, and excessive speed, but in the statement of facts no fact is suggested which would form a basis for the two latter allegations. And, of course, the notation as to the doctrine of last clear chance is a reservation of a point of law and not an allegation of negligence.

Three readings of the pretrial statement are possible. One reading is that the statement of facts and the “negligence alleged” are not supposed to be separate parts, one dealing with facts and the other with conclusions, but are to be read as one whole, each being part fact and part conclusions. Thus the statement that the motor cyclist, southbound, was in the northbound lane, purportedly a statement of fact, might be read as an allegation of negligence; and the allegation of negligence in failure to sound a warning might be read as including an allegation of fact that the defendant did fail to sound a warning. The second possible reading is that the two parts of the statement are indeed separate parts but that the “negligence alleged” of “[fjailure to give full time and attention” is broad enough to include driving a motor cycle on the left side of the roadway. The third possible reading is as defendant would have us read it, i. e., that the issue of negligence in being on the left side of the roadway is not posed.

We do not condone this form of pretrial statement. At best it is exceedingly dangerous to the interests of the plaintiff; at worst it is fatal. It does not clearly and unmistakably meet the purposes of the pretrial procedure. The pretrial order, in the language of Rule 16, “limits the issues for trial to those not disposed of by admissions or agreements of counsel”. When entered, it “controls the subsequent course of the action”. As we pointed out in Meadow Gold, the plaintiff is called upon to reveal in the pretrial statement the theory of his ease. A pretrial statement purportedly stating the issues to be tried requires clarity and certainty. We fully recognize the force of the view of our dissenting Mr. Justice Reed, and we agree with his basic position that counsel for a plaintiff cannot fail to reveal the theory of his case and he must state the issues he poses for trial with sufficient certainty and clarity to apprise the trial court and the opposing defendant of what they may expect in the course of the trial.

But in the case before us, upon a consideration of all the pertinent circumstances, we think the pretrial statement can reasonably be read as posing the issue of negligence in being on the wrong side of the roadway. The plaintiff offered in evidence the traffic regulation above quoted (Traffic Regulation 30(a) (2)), and the defendant did not object. That regulation dealt with one, and only one, subject, i. e., driving on the left side of the roadway when approaching or traversing an intersection. It had no possible relevance to anything in this case except the presence of the motor cyclist on the wrong side of the roadway. When that regulation was offered, the defendant made no objection. If the regulation was not relevant to an issue in the case, it was inadmissible, and this fact was inescapably noticeable on the face of things. We conclude that since the defendant interposed no objection to its admission he must have understood or believed that an issue of negligence involving that regulation was in the case. The defendant at no time claimed surprise. Thus the conduct of the parties — the action of the plaintiff in offering this regulation dealing only with the one subject, and the action of the defendant in not objecting to its admission in evidence — establishes that both parties understood that an issue of negligence in being on the wrong side of the roadway was on trial.

When counsel for the plaintiff argued in opposition to the motion for a directed verdict, he urged that being on the wrong side of the road came within the allegation of negligence “[fjailure to give full time and attention”. This reading of the pretrial statement, of course, poses a somewhat different ultimate issue from that posed by the other reading which we have discussed. The issue here would be whether the defendant’s presence on the wrong side of the roadway, under the circumstances then existing, did or did not indicate a failure to give attention to his driving. On the other reading, the issue would be simply whether defendant’s presence on the wrong side, being in violation of the specific regulation on that subject, was or was not evidence of negligence in and of itself. But for present purposes we need not decide which of these two theories was applicable at the time plaintiff rested his case. We assume that upon a re-trial what was unclear as to the issues will be made clear prior to that trial. The overall question upon the record now before us, applicable under either ultimate theory, was whether an issue as to negligence in being on the wrong side of the street was or was not in the case.

Upon a motion for directed verdict the plaintiff’s pretrial statement should be read in the light most favorable to him. In view of possible readings of the statement as including the disputed issue as an issue to be tried, and in view of the conduct of both parties indicating that they so understood, we hold, although by a very slight margin of the competing considerations, that the disputed issue was presented and the defendant should have been put to his proof.

Lurking in the background on this point are questions which we do not reach, because of the meaning we find in this pretrial statement. We mention them merely to make certain we are not understood to be answering them. Rule 15 clearly permits an amendment of pleadings to conform to the proof. But, if there is a pretrial order under Rule 16 which specifies the issues, can a plaintiff successfully move to amend that order at the conclusion of his evidence? Is there such a thing as an implicit amendment of a pretrial order by virtue of evidence admitted upon the trial ? Rule 16 provides that the order as entered shall control the proceedings unless modified “at the trial” to prevent manifest injustice. We need not, in our view of this case, and therefore do not, attempt to determine the meaning of “control” or “at the trial” or “manifest injustice”, or the correlation of Rules 15 and 16 on this point.

In addition to the point which we have discussed, several other points appear in the case. There was evidence to indicate that the plaintiff was within the crosswalk when he was hit. There was no designated, i. e., painted, crosswalk at this intersection, but under the definition in the regulation introduced in evidence no such designation is necessary to establish the existence of a crosswalk. If he was within the crosswalk he was protected by the regulation,⁵ introduced in evidence and admitted over objection, which gives a pedestrian in a crosswalk the right-of-way. Whatever may have been the circumstances provable by the defendant, the plaintiff, by establishing that he was within the crosswalk, put the defendant to his proof.

It follows that the judgment of the District Court must be set aside and the case remanded for a new trial.

Reversed and remanded.

1 . Originally Mr. Johnson’s wife was also a plaintiff, claiming damages for loss of consortium, but her claim was withdrawn.

2 . Originally the District of Columbia was also a defendant, but the claim as to it was dismissed by the court.

3 . D.C.Traffie and Motor Vehicle Regs. § 30(a) (2).

4 . 108 U.S.App.D.C. 33, 278 F.2d 867 (1960).

5 . D.C.Traffic and Motor Vehicle Regs. § 52(a).