Birchall v. Capital Transit Co.

• Decision Date: 23 November 1943
• Docket Number: No. 135.,135.
• Citation: 34 A.2d 624
• Parties: BIRCHALL v. CAPITAL TRANSIT CO.
• Court: D.C. Court of Appeals

34 A.2d 624

BIRCHALL

v.CAPITAL TRANSIT CO.

No. 135.

Municipal Court of Appeals for the District of Columbia.

Nov. 23, 1943.

Appeal from Municipal Court for the District of Columbia, Civil Division.

Action by Hilda Birchall against the Capital Transit Company for personal injuries sustained while a passenger in defendant's bus. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with instructions. admitted that because of the acoustics in the tunnel, vehicular speed seemed to be faster than it really was. He also admitted that he had a claim against the transit company for his own injuries, and that in a written statement to the company he had said nothing about the operator not looking ahead or about the fast rate of speed of the bus. He explained that he had not mentioned those facts in his statement because he was not asked about them.

A police officer detailed to the Accident Prevention Unit, who arrived soon after the collision, described the layout of the scene, identified certain photographs which became exhibits in the case and are in the record before us; he produced the official precinct book containing his incidental report, including a notation, ‘Bus was driven carelessly.’

It was upon this showing that the case was taken from the jury on defendant's motion.

The rule by which evidence is tested on a motion for an instructed verdict has many times been declared in this jurisdiction. It was recently summarized in Galt v. Phoenix Indemnity Co., 74 App.D.C. 156, 120 F.2d 723, 724. Justice Miller, speaking for the court, said: ‘The question which we must decide is whether the case was properly taken from the jury. The rule governing this question is that the motion to direct a verdict admitted every fact in evidence which tended to sustain appellant's case, together with every inference reasonably deductible therefrom; and that if there was any evidence from which the jury could reasonably have found for the appellant, upon proper instructions of law, the order directing a verdict was improper.’

That statement is in complete accord with many earlier cases. ¹ This court has had occasion to adopt the same rule. ²

From our study of the record we hold that plaintiff had made out a prima facie case-one which required answering evidence-and which must be regarded as sufficient to overcome the hurdle of a motion for a directed verdict.

Our of special solicitude for the safety of human cargo has grown the rule that a common carrier must exercise the highest degree of care in transporting passengers for hire. ³ This means that proof of even slight negligence creates liability on its part. ⁴

Applying this rule, we think the conclusion inescapable that the case should not have been taken from the jury. Here was the testimony of plaintiff and another witness fixing the bus' speed at 35 miles an hour; the testimony of a third witness that the operator had averted his gaze and was driving with only one hand on the steering wheel; the testimony of the same witness that he saw the other automobile when it was 125 feet away and that the bus operator either did not see it until practically the moment of the impact, or if he did see it, did nothing about it. All this evidence taken together, as it must be, in a light most favorable to plaintiff, and with every reasonable inference in her favor, certainly spells out a situation from which the jury might have found at least slight negligence. We do not overlook the fact that on cross-examination some of this evidence was somewhat shaded or modified, or that some element of doubt was created, but that has to do with its weight, and not its legal sufficiency.

There seems little doubt that the other vehicle involved in this collision was driven with gross negligence. From the evidence, the jury might have found that plaintiff's damage resulted entirely from the negligence of the other driver. But it may, on the other...