Calbreath v. Capital Transit Company
Decision Date | 20 December 1956 |
Docket Number | No. 13041.,13041. |
Citation | 99 US App. DC 383,240 F.2d 621 |
Parties | Margaret T. CALBREATH, Individually and as Administratrix of James B. Calbreath, Deceased, Appellant, v. CAPITAL TRANSIT COMPANY, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Francis L. Casey, Jr., Washington, D. C., with whom Mr. John J. Sirica, Washington, D. C., was on the brief, for appellee.
Before PRETTYMAN, WILBUR K. MILLER, and WASHINGTON, Circuit Judges.
This is an appeal from a judgment directing a verdict for the defendant upon the opening statement of plaintiff's counsel in a suit based on negligence.
We have frequently pointed out that the rule which must guide the courts in such cases is that set forth in Best v. District of Columbia, 1934, 291 U.S. 411, at page 415, 54 S.Ct. 487, 489, 78 L. Ed. 882:
Reference may also be made to Pomeroy v. Pennsylvania R. Co., 1955, 96 U.S.App.D.C. 128, 223 F.2d 593; Boland v. Love, 1955, 95 U.S.App.D.C. 337, 222 F.2d 27; Booth v. District of Columbia, 1956, ____ U.S.App.D.C. ____, 241 F.2d 437, and Ackerhalt v. National Savings & Trust Co., 1956, ____ U.S.App.D.C. ____, ____ F.2d ____. In all these cases we reversed judgments for the defendant rendered on the opening statement of plaintiff's counsel.
The opening statement here was in substance this: Plaintiff's decedent, Mr. Calbreath, was proceeding to a bus stop to take a bus home from his work. He saw the defendant's bus draw up, and ran for about 50 feet to catch it. Then he slowed down and continued toward the bus stop, where people were getting on. Before he reached the stop and while he was still on the sidewalk, the bus driver closed the door and suddenly drew away from the curb to the left, very sharply and very fast, as a result of which the bus struck Mr. Calbreath, knocking him down and injuring him. At the conclusion of this statement the defendant moved for a directed verdict on the ground that the statement set forth no act of negligence. After a colloquy with counsel, the court stated:
A person using a sidewalk is entitled to be free from bodily injury caused by buses or vehicles using the highway: drivers should keep a safe distance away, so that no part of the vehicle can inflict harm. If some part of a vehicle does strike an individual on the walk, a prima facie case of negligence is shown.1 The cases cited in the margin also hold that a person on the sidewalk is not guilty of contributory negligence as a matter of law merely by reason of the fact that he may stand or walk close to the curb. The sidewalk is intended for the use of pedestrians, who are entitled to assume that there will be "no danger from vehicular traffic, regardless of how near to the curb" they stand. Henneberry, supra note 1, 253 S.W.2d at page 8. To be sure, there may be circumstances from which it may be inferred that a plaintiff so situated is guilty of contributory negligence, but it is for the jury to make this inference, and the defendant has the burden of proof. Mosher v. Lamora, 1935, 245 App.Div. 903, 282 N.Y.S. 379.
Defendant-appellee urges upon us a number of decisions involving streetcars. But the situation there is quite different from the present one, see Riegel v. Oakwood St. Ry. Co., supra note 1, 42 N.E. 2d at pages 678-679. Even so, where a person on the sidewalk has been hit by the rear overswing of a streetcar as it rounds a curve, the decisions refuse to hold as a matter of law that the streetcar company is not guilty of negligence or that the pedestrian is guilty of contributory negligence; instead, they leave it to a jury to decide these questions.2
For these reasons, we think the plaintiff is entitled to present her evidence to a jury. The judgment of the District Court will accordingly be reversed and the cause remanded.
So ordered.
1 To operate a bus "in such close proximity to the curbing as to strike a pedestrian standing on the sidewalk" is ordinarily to operate it negligently. Cincinnati,...
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