Washington v. Capital Cab Cooperative Ass'n

363 A.2d 305, 1976 D.C. App. LEXIS 358

• Court: District of Columbia Court of Appeals
• Decided: September 3, 1976
• Docket: No. 9226
• Status: Published

Opinions

GALLAGHER, Associate Judge:

This is an appeal from the entry of judgment for the defendant, Capitol Cab Cooperative Association, Inc., at the close of the plaintiff’s (appellant) case in this automobile negligence case tried before a jury.

The plaintiff testified he was driving east on M Street, Southwest, at 8 a.m. Traffic was “pretty heavy”. There was a bus slightly in front of him in the lane next to him as he approached the intersection at Delaware Avenue where he collided with the rear side of a taxicab driven by Russell and owned by the Capitol Cab Cooperative Association, Inc. Plaintiff saw the taxicab a second or two before impact. There; was no light at the intersection.

Plaintiff testified that as he crossed the intersection he was to the left of and behind the bus.

The trial court directed a verdict at the close of plaintiff’s case and entered judgment for the defendant. This ruling was based upon the finding that the plaintiff was guilty of contributory negligence as a matter of law under our decision in Frager v. Pecot, D.C.App., 327 A.2d 306 (1974), and cases there cited. We reverse.

The doctrine set forth in Frager v. Pecot, supra, governs in the unusual case where it is beyond serious dispute that the plaintiff was not observing as he drove and, because of this, in entering an intersection failed to see what was clearly there to be seen; and this was a substantial factor in the causation of the accident. D.C. Transit System, Inc. v. Harris, D.C.App., 284 A.2d 277, 279 (1971).

The facts in this case do not fit that doctrine. Here, there was testimony that there was a bus on the plaintiff’s right and in front of him as he entered the intersection, and this could have obscured the presence of defendant’s car. This fact alone takes this case out of Frager and Harris, supra. There were not the unusual circumstances presented in those cases. It was not indisputable here that plaintiff failed to observe and see what was clearly in his reasonable scope of vision as he approached the intersection. Consequently, Frager and Harris, supra, do not control and it was error to enter judgment for the defendant at the close of plaintiff’s case.

Reversed and remanded for a new trial. 1

1 . Because of our disposition of this case, we assume that upon remand the default judgment properly entered under the authority of Rule 37(d) of the Rules of the Superior Court against the other defendant, Mr. Russell, will be reinstated. There is not present here the controlling factual situation which existed in D.C. Transit System, Inc. v. Young, D.C.App., 293 A.2d 488 (1972).