WASHINGTON GAS LIGHT COMPANY v. Jones

332 A.2d 358, 1975 D.C. App. LEXIS 320

• Court: District of Columbia Court of Appeals
• Decided: February 5, 1975
• Docket: 7745, 7746
• Status: Published

Opinions

FICKLING, Associate Judge:

This is a consolidated appeal from a jury verdict in favor of appellee Lillie Mae Jones, who had brought suit against the Washington Gas Light Company and the District of Columbia for damages suffered when she tripped over a protruding gas box in a public street. The issues raised on appeal are: (1) whether the testimony of a witness as to the estimated height of the protrusion is probative in light of conflicting testimony based on precise measurement of the protrusion; (2) whether the protrusion is trivial as a matter of law and therefore not an actionable defect; and (3) whether the evidence is sufficient on the question of notice. We affirm.

On December 31, 1969, at approximately 8:30 p. m., Miss Jones, aged 71, alighted from a bus near the intersection of M Street and Connecticut Avenue, N.W. After dismounting- the bus and while crossing M Street in the crosswalk, Miss Jones stubbed her right foot on a 6" x 6" gas box which protruded from the surface of the street and she fell to the pavement injuring her knee.

There was conflicting testimony concerning the elevation of the gas box. Mr. Reams, a witness for the plaintiff, who photographed the scene of the accident and the gas box in particular, testified that he estimated the gas box to be Yi" to ¾" above the surface of the pavement. Mr. Sullivan, a gas company employee, testified that, using a metal tape measure, he measured the gas box and found it to be Y\" to y%" above the surface.

With respect to the conflicting testimony, we find that Mr. Reams’ testimony is admissible. It ha!.s long been recognized that testimony relating to estimates of distance, time, sizé, identity, and the like are admissible. 7 \ Wigmore on Evidence § 1977 (3d ed. 1940). If, as here, the admitted testimony leads to a conflict in the evidence presented as to the height of the protrusion, then the jury, as the trier of fact, is bound to resolve the conflict and determine the actual height of the gas box. Once opinion testimony is admissible, as is Mr. Reams’ testimony, it does not subsequently become non-probative nor insufficient to support a verdict merely because of conflicting evidence.

On the question of whether the protrusion is trivial as a matter of law, appellants’ reliance on Proctor v. District of Columbia, D.C.App., 273 A.2d 656 (1971), is misplaced. There, this court held that a Ya" brick protrusion in a brick sidewalk was such a trivial irregularity that the trial court should have directed a verdict in favor of the District of Columbia. Unlike the instant case, in Proctor there was an inconsequential unevenness which is common to most brick sidewalks; here, there was a foreign object (i. e., gas box) protruding in a crosswalk according to evidence presented by appellee.

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More relevant is Klein v. District of Columbia, 133 U.S.App.D.C. 129, 409 F.2d 164 (1969), in which the court held that a sidewalk elevator shaft door handle which protruded ¾" was of a sufficient height to allow the jury to determine whether the District of Columbia was negligent in allowing this condition to exist. The court found “it impossible to say that reasonable men must necessarily find that such a protrusion . . . on a sidewalk is not unreasonably dangerous. . . . ” 133 U.S.App.D.C. at 132-33, 409 F.2d at 167-68 (emphasis in original). Since here there is evidence that the gas box was ½" to above the surface of the crosswalk, the protrusion was not trivial as a matter of law and it was not error to submit the case to the jury.

Finally, we find no error in submitting the question of constructive notice to the jury based on the photographic evidence in this case. District of Columbia v. Megginson, D.C.App., 250 A.2d 571 (1969).

Affirmed.

As stated in Proctor at 658:

We do not believe that we should get into the position of arbitrarily determining that the maintenance of a particular defect such as a hole of a certain depth or a raised brick protruding a certain height above the surrounding bricks constitutes negligence. Such questions are for the jury in light of all of the surrounding circumstances. But this does not mean that we should not examine the evidence to determine if the verdict is supported by substantial evidence.

Here, we find the jury verdict was supported by substantial evidence.