Scott v. District of Columbia

27 App. D.C. 413, 1906 U.S. App. LEXIS 5185

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 1, 1906
• Docket: No. 1615
• Status: Published

Opinion

Mr. Justice McComas

delivered the opinion of the Court:

The Supreme Court has said: “ Tt is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.’ Randall v. Baltimore & O. R. Co. 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322;” Metropolitan R. Co. v. Moore, 121 U. S. 558, 570, 30 L. ed. 1022, 1025, 7 Sup. Ct. Rep. 1334.

And again, the court said in a case wherein it held the trial court did not err in directing a verdict for the defendant and in failing to leave the question of negligence to the jury: “That there are times when it is proper for a court to direct a verdict is clear. Tt is well settled that the court may withdraw a case from them altogether and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Phœnix Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 32, 27 L. ed. 65, 66, 1 Sup. Ct. Rep. 18; Griggs v. Houston, 104 U. S. 553, 26 L. ed. 840; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 482, 27 L. ed. 1003, 1005, 3 Sup. Ct. Rep. 322; Anderson County v. Beal, 113 U. S. 227, 241, 28 L. ed. 966, 971, 5 Sup. Ct. Rep. 433; Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615, 618, 29 L. ed. 224, 225, 5 Sup. Ct. Rep. 1125;’ Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469, 472, 35 L. ed. 213, 215, 11 Sup. Ct. Rep. 569. See also Aerkfetz v. Humphreys, 145 U. S. 418, 36 L. ed. 758, 12 Sup. Ct. Rep. 835; Elliott v. Chicago, M. & St. P. R. Co. 150 U. S. 245, 37 L. ed. 1068, 14 Sup. Ct. Rep. 85. * * * The judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who, in our jurisprudence, stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record; and when, in his deliberate opinion, there is no excuse for a verdict save in favor of (Sue party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment.” Patton v. Texas & P. R. Co. 179 U. S. 658, 659, 45 L. ed. 361, 363, 21 Sup. Ct. Rep. 275.

On a rainy day, or on a “gloomy day with a moist atmosphere,” all sidewalks may become more or less slippery, if not unsafe. “That the District of Columbia is not an insurer of the safety of travelers upon its streets is, of course, unquestioned.” District of Columbia v. Moulton, 182 U. S. 576, 578, 45 L. ed. 1237, 1239, 21 Sup. Ct. Rep. 840.

The appellant was the only person who testified to the condi-' tion of the sewer plate on the morning of the accident, and all she said was that after she was helped up “she saw the plate at the corner, and that it was an old plate and looked as if.it had worn smooth, and as if it had had a great deal of traffic.” The two Siebolds say the plate inclined slightly inward from the curb.

The witness Matilda Fendall, whose market stand was nearby, was,impressed that it was a round iron in the trap that was very smooth; “it was the plate that was lifted out of place to clean the sewer.” G. W. Siehold testified that the manhole was 25 inches hack from the immediate corner of the sewer; but he does not say that the cover of this manhole was smooth. Yet it was on this round iron in the trap which the witness Matilda Fendall said was very smooth that she saw the gentleman and lady fall. G. W. Siebold says the sewer plate was. smooth, particularly on the east and south sides, and in the center not so much so, while L. P. Siebold says the plate was smooth and bright, and would brighten up if he rubbed his foot on it; but whether he rubbed his foot on the edges described by his brother, or on the round iron, the plate that was lifted' out of place to clean the sewer, described by Matilda Fendall,.' or over the whole plate, does not appear.

This court has held the District of Columbia accountable in cases of injury shown to have been caused by defective conditions of the sidewalk, and in some instances where the defect, was slight; but, as was said in District of Columbia v. Haller, 4 App. D. C. 414, the injury must be shown to have befen caused by tbe defective condition of tbe street or sidewalk, such defective condition being shown to exist by the negligence of the defendant. It may be this plate had long been as the appellant says it looked directly after the accident, yet the only testimony of the condition of the plate before the accident was that of Matilda Eendall, who does not say the plate was smooth, but says the round iron over the manhole was smooth; and her testimony was that it was on the round iron that she saw the man, and there probably she saw another woman, fall, each at different times, both of which times, from her testimony, may have been subsequent to the accident which happened to the plaintiff. At least, she does not finally say either accident preceded the accident to the appellant. Such a plate in a sidewalk, smooth in some spots and not smooth in other parts, may yet be reasonably safe for pedestrians. It is undisputed that this point was on a much-traveled way. The appellant | and her companion habitually for two years went over it withjout accident.

The court below was justified in concluding there was no positive evidence of any accident having happened at that place before the day in question, and we are not prepared to say that, after scrutinizing the evidence, the court was not justified in concluding that this plate was reasonably safe for pedestrians on such a thoroughfare. Every case of this character must be determined by its peculiar circumstances. With all the witnesses before the court, and fuller statements than are usually imported into the record, the court may have been fully justified in believing the evidence was conclusive that the appellant fell by accident, and not by reason of the defective condition of the plate as this plate was described at the trial.

If this frequented corner had been dangerous, and had remained in a dangerous condition at this point for a considerable time, it was the duty of the plaintiff below to show that such condition existed and had continued for some time before the accident. We are not convinced that it was the duty of the court to assume that the plate and cover of the manhole were, on the day of the accident, precisely as they had been continuously for a considerable time before the accident, and thereupon to permit the jury to assume such fact. The only proof ivas, we repeat, Matilda Fendall’s statement that the manhole cover, “the round iron,” was smooth; and it is plain the appellant fell before she reached it.

In Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381, the decision was the ruling of a divided court, and the opinion says: “It is to be remembered that the question of due care on the part of the city of Boston is not involved. The liability of cities for defects in highways is created wholly by the statute, and, if the defect has existed for twenty-four hours, does not depend in any degree on the carefulness or negligence of the city.”

The familiar rule concerning negligence and constructive notice which the court below obeyed was that clearly stated in District of Columbia v. Woodbury, 136 U. S. 450, 463, 34 L. ed. 472, 477, 10 Sup. Ct. Rep. 990, and applied in District of Columbia v. Boswell, 6 App. D. C. 416.

In his able and ingenious argument the appellant’s counsel insisted, as he must insist, that the appellee upon a much-used sidewalk had placed an iron sewer plate at the point where the appellant was injured, and had allowed it to remain until it became a smooth, polished surface, and had permitted it to become inclined at such an angle from the street way to the market house as to increase the danger to pedestrians.

It is obvious that the learned court below concluded that there was no evidence legally sufficient to show the condition of the sewer plate and manhole prior to the accident; and the evidence that this part of the sidewalk was not reasonably safe appeared so far insufficient that, under the rule we have first stated in this case, the learned court below concluded the evidence legally insufficient, and in so deciding had a right to give proper weight to the statement of the appellant that the accident happened on “a gloomy day, with a gloomy, moist atmosphere.”

It is not necessary to consider the numerous cases cited upon the subject of the duty of inspection and of constructive notice to the appellee; nor need we discuss the well-settled rule determining the province of the jury in considering accidents alleged to have been occasioned by the negligence of municipalities. The only matter here is the application of that rule. In the absence of legally sufficient evidence that the condition of the sidewalk at this point was the same prior to the day of the accident as it was at that time, and in the absence of definite evidence of any accident having happened at this place prior to the day of this accident, we are not prepared to say that it was the duty of the court to let the jury loosely infer essential facts not proved, and then set aside the verdict and order a new trial. Our conclusion is that the court below did not commit reversible error in its instruction to the jury to return a verdict for the appellee.

The second assignment of error relates to testimony offered by the appellant. L. P. Siebold had testified that two days after the accident he examined the iron sewer plate at the northwest corner of Seventh and B streets, and describes its condition as we have stated. He proceeded to show that, ten days later, he went back to the place, whereupon he was asked whether he saw the same plate there on the second visit, and the court below sustained the objection of defendant’s counsel to this question, and to any answer thereto. In our opinion, the principle which was involved in the ruling of the learned court below is sustained by the opinion of the Supreme Court in Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 206, 36 L. ed. 405, 406, 12 Sup. Ct. Rep. 591. Said Mr. Justice Gray: “This writ of error, therefore, directly presents for the decision of this court the question whether, in an action for injuries caused by a machine alleged to be negligently constructed, a subsequent alteration or repair of the machine by the defendant is competent evidence of negligence in its original construction. Upon this question there has been some difference of opinion in the courts of the several States. But it is now settled upon much consideration, by the decisions of the highest courts of most of the States in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant has been negligent before the accident happened, and is calculated to distract the minds oí the jury from the real issue, and to create a prejudice against the defendant. * * * The true rule and the reasons for it were well expressed in Morse v. Minneapolis & St. L. R. Co., above cited, in which Mr. Justice Mitchell, delivering the unanimous opinion of the supreme court of Minnesota, after referring to earlier opinions of the same court the other way, said: Nut, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employees in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, and more likely he would be to do so; and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence.’ 30 Minn. 465, 468, 16 N. W. 358.”

In the case before us the only effect of admitting the answer would have been to prejudice the jury against the appellee, as the Supreme Court suggests in the Hawthorne Gase just quoted. The same witness has been permitted to testify to the .condition of this plate after the accident. A patent defect of the appellant’s case was the absence of sufficient testimony as to the condition of the plate before the accident. We find no error in the ruling of the court upon this point.

The judgment of the court below must be affirmed with costs, and it is so ordered. Affirmed.