WASHINGTON, Circuit Judge.
Plaintiff-appellant was a guest passenger in an automobile (licensed as a taxicab) which ran into the rear of a parked truck trailer in the city of Washington. Plaintiff was seriously injured. He instituted this suit for damages against the driver of the taxicab, its owner, and the driver and the owner of the truck and trailer. At the conclusion of the plaintiff’s evidence, the District Court directed a verdict in favor of all the defendants on the grounds that, on the evidence adduced, the plaintiff was precluded from recovering as a matter of law since he assumed the risk of injury and was a joint venturer with the driver of the taxicab. This appeal followed. We affirm for the reason that on the undisputed facts here the plaintiff was as a matter of law guilty of negligence which contributed in producing his injury.
Normally, of course, questions of negligence and contributory negligence are for the jury and not the court. Normally, too, “if there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury. If a verdict is deemed by the court to be contrary to the evidence, judgment may be entered non obstante veredicto. Action by this court in the event of an appeal from such a judgment would not entail the trouble and expense of a new trial.” Peigh v. Baltimore & Ohio R. Co., 1953, 92 U.S.App.D.C. 198, at page 202, 204 F.2d 391, at page 396, 44 A.L.R.2d 671. This procedure was not followed in the present case. But we think that on the facts here the trial court did not err when it refused to allow the case to go to the jury. Jackson, the driver of the cab, was clearly negligent. The conduct of the other defendants is perhaps more debatable. Be that as it may, plaintiff’s obvious contributory negligence bars him from recovery against any of the defendants.
The plaintiff and defendant Jackson, a part-time cab driver, embarked together about eight o’clock one evening on a round of visits to taverns in Washington and nearby Maryland in Jackson’s [373]*373rented cab. The plaintiff, as he testified, supplied all of the money used to buy gasoline for the expedition and to purchase the beer and whiskey which they consumed during the evening. They left the last tavern visited at about 11:30 p. m. and got into the cab intending to return home, according to plaintiff’s testimony.1 They became lost and about 12:20 a. m. collided on a street in the city of Washington (Bladensburg Road) with the rear of a parked truck trailer.
The evidence shows plainly and without contradiction that plaintiff and Jackson had both consumed (unaccompanied by any food) a substantial amount of alcoholic beverages during the four hours preceding the collision.2 The plaintiff himself testified that he felt the effects of the liquor; that he noticed at the last tavern visited that Jackson was “pretty high”; that Jackson wasn’t sober and he wasn’t drunk; that after he noticed this they stayed at the tavern drinking beer for what may have been a half hour longer before they entered the taxi for the return voyage to Washington, during which the collision with the parked trailer occurred; that at the time they started back Jackson was still “pretty high” and that he, plaintiff, was feeling pretty good himself and was feeling no pain. Whether or not Jackson was “drunk” when they reentered the cab to return, the plaintiff admittedly understood that Jackson was affected by the alcohol he had consumed and was not sober.3 He nevertheless voluntarily got into the cab.
In Weber v. Eaton, 1947, 82 U.S.App. D.C. 66, 160 F.2d 577, we pointed out that one who voluntarily accompanies a driver in his car with knowledge that the driver has been drinking assumes the risk of injury through the driver’s negligence brought about by the alcohol he has consumed.4 We left open the question whether it would also be contributory negligence. In the circumstances [374]*374here, where plaintiff stated under oath that he not only purchased all the alcoholic drinks consumed by Jackson, who was without money to buy them himself, but also knew the quantity of alcohol which Jackson had consumed, and voluntarily rode with Jackson after he knew and observed that he was under the influence of intoxicating liquor, plaintiff was as a matter of law guilty of independent acts of negligence apart from any negligence of Jackson or the driver and owner of the truck trailer. See 4 (Part 1) Blashfield, Cyclopedia of Automobile Law & Practice (Permanent Ed.) § 2453; Kavanaugh v. Myers’ Administratrix, 246 S.W.2d 451 (Ct.App.Ky. 1952); Franco v. Vakares, 1929, 35 Ariz. 309, 277 P. 812; Schiller v. Rice, 1952, 151 Tex. 116, 246 S.W.2d 607; Lynn v. Goodwin, 1915, 170 Cal. 112, 148 P. 927, L.R.A.1915E, 588; Packard v. Quesnel, 1941, 112 Vt. 175, 22 A.2d 164; French v. Tebben, 1933, 53 Idaho 701, 27 P.2d 474, 478; Taylor v. Taug, 1943,17 Wash. 2d 533, 136 P.2d 176.
Plaintiff’s negligent acts must also of course have been one of the contributing causes of plaintiff’s injuries in order to preclude recovery by him, but here we think that it is indisputable that this is so. Plaintiff’s testimony was that Jackson drove his taxicab after the stop at the last tavern while “pretty high” and “not sober.” His testimony thus established for purposes of this case only, there being no evidence to the contrary, that Jackson operated his cab in the District “while under the influence of awy intoxicating liquor” (emphasis supplied) in violation of D.C.Code § 40-609(b) (Supp. VIII, 1960), making it a crime to do so.5 Jackson was thus guilty of negligence per se. Plaintiff’s evidence did not undertake to explain precisely why Jackson drove his taxicab into the rear of a parked truck trailer, which, although carrying no light itself, could have been seen under the street lighting at its location at a distance of from 50 to 100 feet away.6 Jackson himself testified categorically that the alcohol had not interfered with his vision or his ability to operate his car, but he also stated that before the collision he was looking straight ahead, that he was not talking to plaintiff, and that although the plaintiff was keeping time to music coming over the car radio, his attention was not distracted from his driving. The only possible inference is that Jackson’s action in striking the trailer was caused in part, if not wholly, by the effect of the alcohol he had consumed.7 In view of plaintiff’s admission that Jackson was “pretty high” when plaintiff became a voluntary passenger in the car, and the well-known fact that the effect of drinking alcohol, even though it be not done to the point of actual drunkenness, is to dull or di[375]*375minish the senses and reflexes and the ability to drive safely and to cause a person to overestimate his physical and mental capacity to perform,8
Free access — add to your briefcase to read the full text and ask questions with AI
WASHINGTON, Circuit Judge.
Plaintiff-appellant was a guest passenger in an automobile (licensed as a taxicab) which ran into the rear of a parked truck trailer in the city of Washington. Plaintiff was seriously injured. He instituted this suit for damages against the driver of the taxicab, its owner, and the driver and the owner of the truck and trailer. At the conclusion of the plaintiff’s evidence, the District Court directed a verdict in favor of all the defendants on the grounds that, on the evidence adduced, the plaintiff was precluded from recovering as a matter of law since he assumed the risk of injury and was a joint venturer with the driver of the taxicab. This appeal followed. We affirm for the reason that on the undisputed facts here the plaintiff was as a matter of law guilty of negligence which contributed in producing his injury.
Normally, of course, questions of negligence and contributory negligence are for the jury and not the court. Normally, too, “if there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury. If a verdict is deemed by the court to be contrary to the evidence, judgment may be entered non obstante veredicto. Action by this court in the event of an appeal from such a judgment would not entail the trouble and expense of a new trial.” Peigh v. Baltimore & Ohio R. Co., 1953, 92 U.S.App.D.C. 198, at page 202, 204 F.2d 391, at page 396, 44 A.L.R.2d 671. This procedure was not followed in the present case. But we think that on the facts here the trial court did not err when it refused to allow the case to go to the jury. Jackson, the driver of the cab, was clearly negligent. The conduct of the other defendants is perhaps more debatable. Be that as it may, plaintiff’s obvious contributory negligence bars him from recovery against any of the defendants.
The plaintiff and defendant Jackson, a part-time cab driver, embarked together about eight o’clock one evening on a round of visits to taverns in Washington and nearby Maryland in Jackson’s [373]*373rented cab. The plaintiff, as he testified, supplied all of the money used to buy gasoline for the expedition and to purchase the beer and whiskey which they consumed during the evening. They left the last tavern visited at about 11:30 p. m. and got into the cab intending to return home, according to plaintiff’s testimony.1 They became lost and about 12:20 a. m. collided on a street in the city of Washington (Bladensburg Road) with the rear of a parked truck trailer.
The evidence shows plainly and without contradiction that plaintiff and Jackson had both consumed (unaccompanied by any food) a substantial amount of alcoholic beverages during the four hours preceding the collision.2 The plaintiff himself testified that he felt the effects of the liquor; that he noticed at the last tavern visited that Jackson was “pretty high”; that Jackson wasn’t sober and he wasn’t drunk; that after he noticed this they stayed at the tavern drinking beer for what may have been a half hour longer before they entered the taxi for the return voyage to Washington, during which the collision with the parked trailer occurred; that at the time they started back Jackson was still “pretty high” and that he, plaintiff, was feeling pretty good himself and was feeling no pain. Whether or not Jackson was “drunk” when they reentered the cab to return, the plaintiff admittedly understood that Jackson was affected by the alcohol he had consumed and was not sober.3 He nevertheless voluntarily got into the cab.
In Weber v. Eaton, 1947, 82 U.S.App. D.C. 66, 160 F.2d 577, we pointed out that one who voluntarily accompanies a driver in his car with knowledge that the driver has been drinking assumes the risk of injury through the driver’s negligence brought about by the alcohol he has consumed.4 We left open the question whether it would also be contributory negligence. In the circumstances [374]*374here, where plaintiff stated under oath that he not only purchased all the alcoholic drinks consumed by Jackson, who was without money to buy them himself, but also knew the quantity of alcohol which Jackson had consumed, and voluntarily rode with Jackson after he knew and observed that he was under the influence of intoxicating liquor, plaintiff was as a matter of law guilty of independent acts of negligence apart from any negligence of Jackson or the driver and owner of the truck trailer. See 4 (Part 1) Blashfield, Cyclopedia of Automobile Law & Practice (Permanent Ed.) § 2453; Kavanaugh v. Myers’ Administratrix, 246 S.W.2d 451 (Ct.App.Ky. 1952); Franco v. Vakares, 1929, 35 Ariz. 309, 277 P. 812; Schiller v. Rice, 1952, 151 Tex. 116, 246 S.W.2d 607; Lynn v. Goodwin, 1915, 170 Cal. 112, 148 P. 927, L.R.A.1915E, 588; Packard v. Quesnel, 1941, 112 Vt. 175, 22 A.2d 164; French v. Tebben, 1933, 53 Idaho 701, 27 P.2d 474, 478; Taylor v. Taug, 1943,17 Wash. 2d 533, 136 P.2d 176.
Plaintiff’s negligent acts must also of course have been one of the contributing causes of plaintiff’s injuries in order to preclude recovery by him, but here we think that it is indisputable that this is so. Plaintiff’s testimony was that Jackson drove his taxicab after the stop at the last tavern while “pretty high” and “not sober.” His testimony thus established for purposes of this case only, there being no evidence to the contrary, that Jackson operated his cab in the District “while under the influence of awy intoxicating liquor” (emphasis supplied) in violation of D.C.Code § 40-609(b) (Supp. VIII, 1960), making it a crime to do so.5 Jackson was thus guilty of negligence per se. Plaintiff’s evidence did not undertake to explain precisely why Jackson drove his taxicab into the rear of a parked truck trailer, which, although carrying no light itself, could have been seen under the street lighting at its location at a distance of from 50 to 100 feet away.6 Jackson himself testified categorically that the alcohol had not interfered with his vision or his ability to operate his car, but he also stated that before the collision he was looking straight ahead, that he was not talking to plaintiff, and that although the plaintiff was keeping time to music coming over the car radio, his attention was not distracted from his driving. The only possible inference is that Jackson’s action in striking the trailer was caused in part, if not wholly, by the effect of the alcohol he had consumed.7 In view of plaintiff’s admission that Jackson was “pretty high” when plaintiff became a voluntary passenger in the car, and the well-known fact that the effect of drinking alcohol, even though it be not done to the point of actual drunkenness, is to dull or di[375]*375minish the senses and reflexes and the ability to drive safely and to cause a person to overestimate his physical and mental capacity to perform,8 one could not reasonably conclude that the collision and Todd’s injuries were not caused in part at least by Todd in making possible Jackson’s consumption of alcohol and, after knowing that Jackson was under the influence of alcohol, in riding with him.
It is to be noted that there is no proof of any active negligence on the part of the operator and owner of the parked truck and trailer. These vehicles were standing motionless, in a place where they were entitled to be parked. Although the trailer displayed no light on its rear, the street on which it was parked was lighted by street lights. It is not claimed that any safety or traffic regulation promulgated by the District of Columbia authorities was violated. There was some evidence, however, tending to show, if credited, violation of an ICC regulation, 49 C.F.R. § 192.31 (1960), requiring the posting of lights by a motor vehicle (engaged in interstate commerce as this one was), parked on the highway within a business or residential district of a municipality, if the highway lighting is insufficient to make persons and vehicles clearly discernible at a distance of 500 feet. But even if we were to rule that the regulation was in fact violated, our holding on the issue of contributory negligence would make it unnecessary for us to decide whether this breach would constitute negligence per se, or sufficient evidence of negligence to go to the jury. Compare Interstate Motor Lines v. Great Western Ry. Co., 10 Cir., 1947, 161 F.2d 968; Wright v. Des Moines Ry. Co., 1941, 231 Iowa 410, 1 N.W.2d 259; Peigh v. Baltimore & Ohio R. Co., supra.
The death, bodily injury and destruction caused by drinking drivers need no emphasis here. Such drivers, and passengers who help produce their condition, are not entitled to much sympathy in the courts. We are not denying recovery here merely because the plaintiff-passenger had been drinking. Our decision rests on all the circumstances of this case, from which the inference is inescapable that plaintiff was guilty of negligence, and that his negligence assisted in the production of the accident and his injuries. Under established principles, he is barred from recovery against any of the defendants. See cases collected in 4 (Part 2) Blashfield, Cyclopedia of Automobile Law and Practice (Permanent Ed.) § 2761.
Affirmed.