Baker v. D.C. Transit System, Inc.

• Decision Date: 08 January 1969
• Docket Number: No. 4293.,4293.
• Citation: 248 A.2d 829
• Parties: Trudy F. BAKER, Appellant, v. D. C. TRANSIT SYSTEM, INC., a corporation, Appellee.
• Court: D.C. Court of Appeals

248 A.2d 829

Trudy F. BAKER, Appellant, v. D. C. TRANSIT SYSTEM, INC., a corporation, Appellee.

No. 4293.

District of Columbia Court of Appeals.

Argued October 7, 1968.

Decided January 8, 1969.

Joel D. Sacks, Washington, D.C., for appellant.

Anthony E. Grimaldi, Washington, D.C., for appellee. Wilmer S. Schantz, Jr., Washington, D. C., was on the brief for appellee.

Before HOOD, Chief Judge, and MYERS and KELLY, Associate Judges.

MYERS, Associate Judge:

Appellant fell when she caught her heel in a crack in a cement block where she was waiting for a bus. She sued the bus company to recover damages for her alleged injuries. At trial, at the conclusion of her case, appellee moved for a directed verdict. The judge denied the motion and submitted the case to the jury, which returned a verdict in appellant's favor. Appellee thereupon moved for judgment non obstante veredicto. From the granting of this motion, the present appeal was taken.

On a motion for a directed verdict, in an action founded upon negligence, the trial judge must construe the evidence most favorably to the plaintiff. The question of law presented is not whether there is any evidence — a mere scintilla is not sufficient — but whether there is any upon which a jury could properly find a verdict for the party upon whom the onus of proof is imposed. Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142 (1944). If the evidence so considered fails to establish negligence on the part of the defendant, the case should not be submitted for determination by the jury but should be decided, as a matter of law, in the defendant's favor by the trial judge. In the present case, by denying appellee's motion for a directed verdict and submitting the case to the jury, the trial judge followed the recommended procedure and reserved for later decision the legal questions presented by the motion which were properly raised, after the verdict was returned, by appellee's motion for judgment n.o.v. Knight v. Handley Motor Co., D.C.App., 198 A.2d 747 (1964); Lancaster v. Canuel, D.C.App., 193 A.2d 555 (1963); Rule 50(b) of the trial court. See also Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940).

In reviewing the action of the trial judge in granting appellee's motion for judgment n.o.v., we must balance the evidence against the judge's determination and in favor of the jury's. The question for us is not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether there is evidence upon which reasonable men might differ as to negligence and other elements of liability; whether a jury of reasonable men could properly have reached a verdict in favor of appellant, the party upon whom the onus of proof was imposed. Shewmaker v. Capital Transit Co., supra. Assessed by these criteria, appellee's motion for judgment n.o.v. was properly granted.

Negligence requires a showing of a breach of duty owed to the person injured which, by the observance of due care, could have been avoided, but until a person has placed himself in some substantial sense in the custody or under the control of the carrier, he is not a passenger and no special duty of care is owed him. An intent to become a passenger is not enough to confer that status or to charge...