Harrison v. Davis Construction Co.

42 App. D.C. 255, 1914 U.S. App. LEXIS 2267

• Court: District of Columbia Court of Appeals
• Decided: May 4, 1914
• Docket: No. 2629
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The learned trial justice expressly excluded the question of contributory negligence of the plaintiff as a ground for directing the verdict. But the point has been urged in support of the judgment. The plaintiff had the right to travel the street. He had on previous mornings observed the brick piled in the street, but a lantern upon it, in pursuance of the requirement of the District regulations, gave warning. This pile had been removed before the morning of the 16th. Loose brick had been left in the street after the removal of the main pile, and wére not indicated by a warning lantern. At an early hour in the morning, while it was yet dark, plaintiff rode down the street as lie had been accustomed to do. Not observing the loose brick, he rode onto them and was hurt. His bicycle lamp was lighted, and there was a street lamp some little distance away. He says he was riding at a slow rate and did not see the bricks. This evidence was uncontradicted, and certainly did not show contributory negligence as matter of law.

2. It is the province of the jury to determine the credibility of the witnesses and the weight of the evidence, under proper directions in respect of the law applicable thereto. “The court is never justified in directing a verdict except in cases where, conceding the credibility of the witnesses and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.” Adams v. Washington & G. R. Co. 9 App. D. C. 26, 30, 9 Am. Neg. Cas. 163.

Tested by this rule, wo think it was error to direct a verdict for the Davis Construction Company. The regulations require that a warning light shall be displayed on or over every obstruction permitted to be made in a public street. If the loose brick were lodged or left in the street by the defendant, in the course of the performance of its contract, it was its duty to mark the same with the required light. If the plaintiff, in the exercise of ordinary care, was injured by the failure to light the loose brick into which he rode, the defendant is liable to him for the reasonable consequences of its negligence.

It is argued that there is no testimony tending to show that the defendant vras using brick in the performance of its contract, or that it was responsible for the pile of brick or the loose brick left after the removal of the pile. It is true that, while it was under a contract not then fully performed, to erect an addition to a school building,—a contract the specifications of which were not proved,—it does not directly appear that it was using brick in the performance. Nor does it appear that it laid the pile of brick, or left the loose brick in the street when the pile was removed. But it may be legitimately inferred from the evidence heretofore recited both that it had piled brick in the street for use in the performance of its contract, and that in removing the same, it left the loose brick and bats in the street. The jury would, at least, be warranted in deducing such an inference from the facts proved. It is possible, too, that the bricks may have been scattered in the street by children at play, but that is for the determination of the jury. It was also for the jury to determine, in case they found that the bricks were carried into the street by children, whether' the defendant could, by the exercise of ordinary and reasonable care, have prevented the commission of the nuisance by the children, or have remedied its commission.

3. The situation of the defendant, the District of Columbia, is different. It had entered into a contract with a presumably responsible contractor to improve its school building. In such work it is usual, and ordinarily not unreasonable, to permit the contractor to occupy a part of the adjacent street with his structures and materials. In such case, as we have seen, the regulations require that the contractor shall display a warning light on or over his obstructions. It may be assumed that it is the duty of the District authorities to exercise reasonable supervision and care to see that persons authorized to obstruct the streets shall guard, and display warnings of, the danger. In this instance it appears from the evidence that warning lights had been displayed as long as the pile of brick was maintained in the street. The evidence indicates clearly that the pile could not have been removed earlier than during the day preceding the accident. Consequently, whether the brick and bats were left on the site of the former pile, or place there by playing children, they could only have been so left or scattered during that day. “Notice * * * of the defect which caused the injury, or facts from which notice may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability.” District of Columbia v. Payne, 13 App. D. C. 500, 504.

Giving the plaintiff the benefit of every legitimate inference deducible from the testimony, we are of the opinion that the court did not err in holding that there was a complete failure to show notice to the District of Columbia of the dangerous condition of the street at the time of the accident.

The conditions are similar to those presented in District of Columbia v. Blackman, 32 App. D. C. 32, 39, in which case it was said: “There was no evidence before the jury that the District had knowledge, either actual or constructive, of the unguarded condition of the hole at the time the plaintiff fell into it. On the contrary, the circumstances as disclosed by the evidence were such as to warrant the District in believing that the conditions of its permit were continuing to be carried out. If, therefore, in the circumstances of this case, the District is to be chargeable with liability, we must in effect impose upon it the duty of placing a representative in direct supervision over every similar work in the District. We do not so understand the law.”

So much of the judgment as is in favor of the Davis Construction Company is reversed with costs; so much of it as is in favor of the District of Columbia is affirmed, and the cause is remanded to the Supreme Court of the District for further proceedings. Affirmed in partj reversed in part.

Mr. Justice Van Orsdel concurs in the result.