Stewart v. Capital Transit Co.

108 F.2d 1, 70 App. D.C. 346, 1939 U.S. App. LEXIS 2485

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1939
• Docket: No. 7141
• Status: Published

Opinions

STEPHENS, Associate Justice.

This is an appeal by the plaintiffs below from judgments of the District Court entered on a verdict for the defendant in two personal injury actions involving similar issues and consolidated for trial. One suit was by the injured person, Lottie Stewart; the other was by her husband for loss of services. Lottie Stewart was struck by a street car on Florida Avenue, N. W., in Washington, D. C. The complaints alleged negligence. The defendant pleaded, and the plaintiffs denied, contributory negligence. At the trial the plaintiffs contended that if there was contributory negligence on the part of Lottie Stewart, the defendant nevertheless had the last clear chance to avoid the accident. The errors assigned on the appeal reduce themselves to two— that the trial court erred in not instructing the jury upon the doctrine of last clear chance, and in not granting the plaintiffs’ motion for a new trial.

The only instructions requested by the plaintiffs upon the doctrine of last clear chance were the following:

“[Plaintiffs’ Prayer Number One] The jury is instructed in these cases that even though you find that the plaintiff, Lottie Stewart, may have been guilty of negligence which contributed to the accident and the injury by putting herself in a position of peril, yet if thereafter the defendant, seeing or should have seen the position in which she was, had opportunity or should have had opportunity, by the exercise of reasonable care and prudence, to save her from the consequences of her negligence, it. was his duty to do so, and that was the proximate cause of the injury to the plaintiff, Lottie Stewart, both plaintiffs herein may recover.

“[Plaintiffs’ Prayer Number Two] The jury is instructed that contributory negligence applies only where the negligent act of the plaintiff is concurrent in point of time with the negligent act of the defendant, so that the defendant has no opportunity to act with reference to the act of the plaintiff, that it has no application in these cases even if you find that there was negligence of the plaintiff, Lottie Stewart, which negligence was prior in point of time to that of the defendant, that under such circumstances the negligence of the plaintiff is not contributory, for the defendant’s action should be controlled by the plaintiff’s, whether the act of the latter was the result of carelessness or not, that the plaintiff though guilty of concurrent negligence may recover if it appear either that the defendant might by a proper degree of caution, have avoided the consequences of the injured party’s neglect, or the latter could not, by ordinary care, have avoided the consequences of defendant’s negligence.

“[Plaintiffs’. Prayer Number Three] The jury is instructed that if you find that the defendant was guilty of any one of the negligent acts alleged by the plaintiffs, which act was sufficiently prior in matter of time to any negligence of plaintiff, Lottie Stewart, which in the exercise of: proper care and caution was in sufficient time to have prevented the consequences of said negligence and was the proximate cause of said accident and injury and losses incident thereto, both plaintiffs herein should recover, that the time of plaintiff’s peril began when she entered within two feet north of defendant’s outer west bound track and extended to a like distance to the south of defendant’s outer east bound track, and in addition thereto the path of the automobile involved in the accident, that as soon as plaintiff, Lottie Stewart, entered upon defendant’s west bound track and especially upon defendant’s east bound track she was menaced by defendant’s oncoming car.”

The trial court refused to give these requested instructions and the plaintiffs excepted.

The refusal was proper. The requests are fatally lacking in clarity; and, so far as their' meaning cán be made out, they do not correctly state the law of last clear chance. Prayer No. 1 is defective in that it does not require either that the peril of the plaintiff Lottie Stewart be inescapable, or that she be oblivious to it. Prayer No. 2 is defective in the use of the disjunctive in the clause “may recover if it appear either that the defendant might . . . have avoided the consequences of the injured party’s neglect, or the latter could not . . . have avoided the consequences of defendant’s negligence.” Under the first alternative of the disjunctive phrasing there is, as pointed out in respect of Prayer No. 1, no requirement that the peril of the plaintiff.be inescapable or that she be oblivious to it. Prayer No. 3 is defective in that it is based upon a theory that the doctrine of last clear chance is applicable in circumstances where the defendant’s negligence, and all of it, precedes that of the plaintiff. But the doctrine does not apply unless the defendant’s negligence consists in failing to extricate the plaintiff from a peril in which the plaintiff’s negligence has placed him. It is to be noted that the sequence of contributory negligence and negligence in this prayer is the reverse' of that stated in Prayer No. 2.

The trial court was under no independent duty to supply correct instructions, the plaintiffs’ requests being defective. Robinson v. Parker, 1897, 11 App.D.C. 132; Globe Furniture Co. v. Gately, 1922, 51 App.D.C. 367, 279 F. 1005.

In respect of the motion for a new trial: We have considered the affidavits filed in support of the motion and are not able to reach a conclusion that there was any abuse of discretion on the part of the trial judge in denying the motion.

Affirmed.