Washington Railway & Electric Co. v. Upperman

47 App. D.C. 219, 1918 U.S. App. LEXIS 2398

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 7, 1918
• Docket: No. 3054
• Status: Published

Opinion

Mr. Justice Van Okkdel

delivered the opinion of the Court:

The assignments of error, aside from one based upon the refusal of the court to instruct a A'erdict for defendant, which need not be considered, and another claiming that the amount of the verdict was excessive, relate to the giving of certain prayers requested by counsel for plaintiff and the refusal of certain prayers requested by counsel for defendant'. Objection is made to the granting of a prayer on behalf of plaintiff to the effect that, if the motorman failed to sound his gong and the circumstances were such that ordinary prudence demanded it, or failed to have his car under proper control and the accident resulted from such negligence, “without negligence on his (plaintiff’s) part,” the jury should find for plaintiff. The objection to the prayer urged by counsel is that it injects into the case an element neither within the pleadings nor the evidence. The declaration charges, among other things, that defendant's agents and employees failed to “maintain a proper lookout to avoid injury to said plaintiff’s intestate,” and failed “to sound a gong or other signal to apprise plaintiff’s intestate of his danger.” Not only is the prayer within the charge of negligence in the declaration, but there was proof that the inotorman was not attending to the proper control of the car when the accident occurred.

The objection by counsel to another prayer granted at the request of plaintiff is that it injects into the case the doctrine of last clear chance. Counsel in his brief says: “The ‘last clear chance doctrine’ was not put in issue by the pleadings. Nor did ■the plaintiff attempt to introduce any evidence from which it could even be inferred that the ‘last (dear chance doctrine’ was relied upon, or which would justify a submission of the case to the jury thereunder.” This is best answered by a prayer offered by counsel for defendant, and granted, which set up with great particularity the elements tending to bring this ca.se within the rule of last clear chance, and closing with the injunction that “the burden of proving such last clear chance, •x- * .* on the plaintiff.” Counsel, having adopted this theory of the case, is estopped to object to its being properly presented to the jury. Washington R. & Electric Co. v. Clarke, 46 App. D. C. 88.

Error is assigned in the refusal of the court to grant the following prayer requested by defendant: “The court instructs the jury as a matter of law that the defendant had the preferential right of way over its tracks at Ninth and E streets, where the accident which is the subject of this suit occurred, and its employees had the right to assume that this right would be respected, and had the right to act on that assumption until the contrary was indicated by the plaintiff’s intestate.” The instruction is misleading in that it does not limit the preferential right to a lawful and prudent operation of the cars. Undoubtedly, a street ear company Jias a preferential right of way over its tracks, which the public generally is required to respect. But the right has its limitations. The public has a reciprocal right to the use of the streets and to that portion thereof occupied by the railway company’s tracks. Having this right, it has the further right to assume that the railway company, or its agents, will not negligently operate its cars. In other words, when a motorman sees a pedestrian or one driving a vehicle approaching the track in front of his car, he has a right to assume that such person will respect the preferential right of the company, and not needlessly expose himself to danger. On the other hand, the person approaching the track has the right to assume that the motorman in charge of the approaching car not only k»2 his car under control, but is operating it in a lawful way, free from any imputation of negligence. The rule is clearly stated by Chief Justice Shepard in Capital Traction Co. v. Apple, 34 App. D. C. 559, 572, as follows: “A street ear company has a preferential right of way over its own tracks, which all persons, under ordinary conditions, must respect. In case of wilful obstructions or hindrances, the law provides a remedy. At the same time, the streets occupied by tracks are open to all proper uses of the people, who are frequently compelled to cross, or to briefly occupy, the tracks in going to and from their homes and about their daily business. The railway company has no exclusive right to the use of the parts of the streets occupied by its tracks. Railway and people alike must exercise their respective rights with due regard to the rights of each other. They must exercise reasonable care, under the circumstances of each particular case.” There was no error in refusing the present instruction, as there was evidence of the negligent operation of the car when the accident occurred.

Complaint is made of the refusal of the court to grant two prayers offered by counsel for defendant. It is unnecessary to consider these exceptions at length, since one of the prayers related to contributory negligence and the other to concurring negligence, both of which points were amply covered in other prayers granted. However, the prayer offered in respect of contributory negligence was defective in that it based the contribuíorv negligence of plaintiff’s intestate upon the fact of his “going upon the defendant company’s track without effectually looking or attempting to look or listen.” There was no evidence that plaintiff’s intestate failed to look or listen before going upon the tracks, lienee, the prayer, if granted, would have injected into the case an element foreign to the evidence. The instruction as to concurring negligence was also defective in that it left out the question of last clear chance, an issue, as we have observed, brought into the case by counsel for defendant himself, and which he cannot now avoid.

This brings us to the last assignment of error, which is that the amount of the verdict is excessive. This assignment is based upon the denial of a motion for a new trial in the court below. Refusal to set aside; a verdict on motion for a new trial will not be reviewed on appeal. Columbia R. Co. v. Cruit, 20 App. D. C. 521; Wood v. Richmond & D. R. Co. 1 App. D. C. 165; District of Columbia v. Wilcox, 4 App. D. C. 90. It has also been held that it is not “within the province of this court to reverse a judgment for the reason that a verdict is excessive.” American Secur. & T. Co. v. Kareney, 39 App. D. C. 223, 230. This is but an annunciation of the Federal rule. Wabash R. Co. v. McDaniels, 107 U. S. 454, 27 L. ed. 605, 2 Sup. Ct. Rep. 932; Missouri. P. R. Co. v. Chicago & A. R. Co. 132 U. S. 191, 33 L. ed. 309, 10 Sup. Ct. Rep. 65; Wilson v. Everett, 139 U. S. 616, 35 L. ed. 286, 11 Sup. Ct. Rep. 664. What an appellate* court might do in case of gross abuse of discretion by the trial court it is unnecessary to decide, since the verdict in this case is not such as to present that question.

The judgment is affirmed, with costs. 'Affirmed.