Machanic v. Storey

• Decision Date: 21 March 1963
• Docket Number: No. 17098.,17098.
• Citation: 317 F.2d 151,115 US App. DC 87
• Parties: Roger MACHANIC, Appellant, v. Kate STOREY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 87, 317 F.2d 151 (1963)

Roger MACHANIC, Appellant, v. Kate STOREY, Appellee.

No. 17098.

United States Court of Appeals District of Columbia Circuit.

Argued December 7, 1962.

Decided March 21, 1963.

Petition for Rehearing Denied May 1, 1963.

Petition for Rehearing Denied May 6, 1963.

Mr. David Machanic, Washington, D. C., for appellant.

Mr. Justin L. Edgerton, Washington, D. C., with whom Messrs. Charles E. Pledger, Jr., John F. Mahoney, Jr., and R. Harrison Pledger, Jr., Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, WASHINGTON and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied May 1, 1963.

Petition for Rehearing Before the Division Denied May 6, 1963.

WASHINGTON, Circuit Judge.

This is an automobile accident suit in which a directed verdict was entered for the defendant at the close of the plaintiff's case. The plaintiff has appealed, contending that he presented sufficient evidence to take his case to the jury and that the District Court erroneously directed a verdict.

The plaintiff's evidence, consisting of testimony by himself and a Pennslyvania State Police Officer, who witnessed the accident from a distance of some 800 feet, may be summarized as follows:

On July 4, 1960, the plaintiff and the defendant were returning to Washington, D. C., in the plaintiff's automobile from Butler, Pennsylvania, where they had spent the holiday weekend with cousins of the defendant. They commenced the return trip at about 3 or 3:15 p. m. on the 4th. The plaintiff, a man 28 years of age, drove for about an hour and, feeling sleepy, turned over the driving to defendant, a young woman in her twenties. Approximately five minutes after she had taken the wheel, he fell asleep. They were at that time on the Pennsylvania Turnpike, a dual highway with four 12-foot lanes, separated in the middle by a 10-foot medial strip, and bordered on each side by a 10-foot shoulder or "berm." The weather was fair, the road was dry, and visibility was good. The holiday traffic was quite heavy, according to the State Police Officer. The plaintiff considered the defendant, with whose driving he was familiar, a competent and good driver in whom he had every confidence. He had no apprehension about her driving on that day. Neither he nor she had drunk any intoxicating beverage on that day. Before the plaintiff went to sleep, the defendant had stated to him that she did not feel the "least bit sleepy", and he had observed nothing to indicate that she was sleepy.

At about 4:15 p. m. the car left the Turnpike, raising a "cloud of dust" on the berm, there about 12 feet wide, and, as shown by its tracks in the dust, ran straight toward a 12-foot embankment, abutting the berm, at a "graduated slant" of 45 degrees. There were no marks to indicate skidding. The car hit the embankment, went into the air, made one complete turn in the air and then landed on the Turnpike upright on its wheels.¹ The plaintiff was thrown out through the closed sun roof of the car onto the Turnpike and was seriously injured. The defendant also suffered some injuries.

After he fell asleep, the next thing recalled by the plaintiff was that he woke up very suddenly and "felt a violent swerve in the car" and "a terrific sense of centrifugal force" in his stomach. He testified on direct examination that he "reacted instinctively to the situation," "reached over for the wheel," made "contact with it," and just then felt himself "being flung from the car" and next he was "hurtling through the air." He stated that he "didn't have control of the car in any way" in the fraction of a second before being thrown out. On cross-examination the plaintiff indicated that he had upon awakening "grabbed" or "touched" the steering wheel with both hands "in a normal driving fashion," that he "was making an effort" to steer and "get the car back in control." He admitted that the car could then have been on the highway, and that "I assume it was," but stated that he didn't actually know where it was.

Following the accident, the tires were described as in good condition and inflated, although the left front tire was leaking slightly and in the process of deflating, and the rim on which that tire was mounted was severely damaged, to the point where the tire would not hold air. Plaintiff stated on cross-examination that the tire in question might have been on the car for as much as 35,000 miles.

The defendant was not called as a witness. The plaintiff and the State Police Officer both testified that she had stated to them that she could not explain how the accident had occurred. She told the Officer that nothing had happened to the automobile, evidently meaning that the steering mechanism had not failed.

At the close of plaintiff-appellant's case, the defense moved for a directed verdict. The motion was granted by the trial judge.²

In cases like the present, as we pointed out in Boland v. Love, 95 U.S. App.D.C. 337, 341, 222 F.2d 27, 31 (1955), the law of the District of Columbia controls as to whether there is sufficient evidence to take the case to the jury, whereas the law of the place of injury — here, Pennsylvania — controls as to the standard of conduct required of the parties, including (to quote the Boland opinion) the question "whether the particular conduct involved here is or is not negligent." (Emphasis in original.) See also Tobin v. Pennsylvania R. Co., 69 App.D.C. 262, 100 F.2d 435 (1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939).

Under the law of the District of Columbia, when a verdict is directed against the plaintiff at the close of his case, we must view plaintiff's case in the light most favorable to him, and give him the full benefit of every legitimate inference warranted by his evidence.³ So viewing the plaintiff's case, we must conclude that it was error to direct a verdict for the defendant in the case at bar.

Authority is overwhelming for the proposition that where an automobile leaves the highway and collides with a stationary object off the road, causing injury to a passenger, negligence on the part of the driver may be presumed or inferred (1) if the driver exclusively controlled the operation of the car, (2) if the accident would not ordinarily have happened unless the driver in control had failed to use due care, and (3) if the cause of the accident is not otherwise explained or shown. See Annotation: "Applicability of res ipsa loquitur doctrine where motor vehicle leaves road," 79 A.L.R.2d 6 (1961), and particularly the cases referred to at 22-27, 29-44, 52-64, 73-114.⁴ See also Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33 (1960); Leebove v. Rovin, 363 Mich. 569, 111 N.W. 2d 104 (1961). This is the rule followed by the Pennsylvania courts, the locale of the accident. Knox v. Simmerman, 301 Pa. 1, 151 A. 678 (1930); Brewer v. Brodhead, 341 Pa. 384, 19 A.2d 117 (1941); Kotal v. Goldberg, 375 Pa. 397, 100 A.2d 630 (1953). See also Watford v. Simon, 163 F.Supp. 664 (E.D.Pa.1958). We think the same rule should apply in this jurisdiction, and that a case arising solely within the District of Columbia on facts like the present should be allowed to go to the jury.⁵

The plaintiff's evidence was that the plaintiff's car, driven by an experienced and competent driver with his consent, left a dry straight road when visibility and driving conditions were good, no defect or obstruction in the road and no defect in the car were shown to have existed, and no interference by or collision with another vehicle was indicated. The possibilities that a sudden skid or a blowout of a tire had occurred were eliminated by the evidence. All the tires were inflated following the accident, but the rim of the left front tire was found damaged. Since the damage to the rim was such that the tire would not hold air, and since the left front tire was inflated (although leaking) immediately following the accident, it is a reasonable inference, and the one required for purposes of disposing of the motion for a directed verdict, that the rim became damaged in the accident and thus was not the cause of, or one of the things which might have caused, the accident.

In the absence of anything more, the accident being otherwise unexplained, it is obvious that the car would not ordinarily have left the road and collided with the embankment unless someone had been negligent, and the inference is certainly permissible that the accident resulted from the driver's negligence, assuming that the defendant driver had control over the driving. Since the plaintiff testified that he did not control the car in any way, and his other testimony on direct examination could be taken as tending to support this categorical conclusion, we are required, for purposes of the motion for a directed verdict, to treat this testimony favorably and assume that the defendant was in exclusive control. Clearly, then, the plaintiff's evidence made a case for the jury, and the jury, if it credited his statement that he was not in control, could find that the defendant driver controlled the driving, that she must have been and was negligent, and that this negligence caused the accident and the resulting injury to the plaintiff.

To be sure, the plaintiff's testimony on cross-examination can be regarded as raising a question as to whether the defendant-driver did have exclusive control over the driving — that is, whether or not the plaintiff's actions in putting both hands on the wheel in driving position in an effort to gain control, wrested control away or so interfered with the driver's control over the driving as to deprive her of effective control or otherwise to be the proximate or intervening cause of the accident and resulting injury. This factual question could only be resolved by a jury after hearing the plaintiff's evidence and that to be presented by the defendant, who may well be able to throw additional light on the question of...