Capital Transit Co. v. Gamble, 9244.

• Decision Date: 10 March 1947
• Docket Number: No. 9244.,9244.
• Citation: 160 F.2d 283,82 US App. DC 57
• Parties: CAPITAL TRANSIT CO., Inc., v. GAMBLE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 57, 160 F.2d 283 (1947)

CAPITAL TRANSIT CO., Inc., v. GAMBLE et al.

No. 9244.

United States Court of Appeals District of Columbia.

Argued January 9, 1947.

Decided March 10, 1947.

Mr. Howard Boyd, of Washington, D C., for appellant. Mr. Edward Bennett Williams, of Washington, D. C., also entered an appearance for appellant.

Mr. Wilbert McInerney, of Washington, D. C., with whom Mr. Morris Benson, of Washington, D. C., was on the brief, for appellees. Mr. Lewis A. McGowan, Jr., of Washington, D. C., also entered an appearance for appellees.

Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.

CLARK, Associate Justice.

This is an appeal from a verdict and judgment of the District Court awarding damages for personal injuries. Defendant moved for a directed verdict at the close of the plaintiffs' evidence and again at the close of its evidence. These motions were denied. After the jury returned a verdict in favor of plaintiffs and judgment was entered thereon, defendant moved for judgment notwithstanding the verdict which was denied. Defendant, as appellant here, urges that this action of the trial court was error.

Considering the case as we do, it presents a single question which can only be answered by an analysis of the evidence. If the evidence, construed most favorably to the plaintiffs, is insufficient to form a basis for a verdict for plaintiffs, the court erred in submitting the case to the jury. We agree with the contention presented by appellant that the court should have directed a verdict in its favor at the close of the evidence. While we are of opinion that defendant's motion made at the close of plaintiffs' evidence should have been granted, defendant's introduction of evidence was a waiver of that motion and the court's failure to grant it cannot be alleged as error on appeal. See Wigmore, Evidence (3d Ed. 1940) § 2496. However, defendant's evidence in no way strengthened plaintiffs' case and plaintiffs are in no better position as a result of it than they were at the termination of their own presentation.

Appellant's streetcar was proceeding west in the 1200 block of C Street, Northeast, a one-way street thirty-two feet wide with a single streetcar track four feet eight inches wide laid in the center. Along side the south sidewalk and curb of the street was stacked furniture extending from in front of the premises 1209 C Street east to 1213 or 1215 C Street. Peggy Ann Gamble, an infant five years of age at the time of the accident, had been playing on the sidewalk along the south side of the street when she ran from the curb in front of the premises at 1209 C Street directly into the left front side of appellant's streetcar.

Mrs. Massicotte, plaintiffs' only eyewitness, testified that she was knocking at the door of 1209 C Street and that she turned around just in time to see the child "run directly into the trolley car"; that she saw the streetcar prior to the time it struck the child; that she "knew she (the child) was going to be hit with the streetcar"; that she wouldn't estimate how far away the streetcar was when she saw the child start from the curb but that in reference to the furniture piled on the sidewalk the "streetcar might have been about maybe around 1213, 1211; it wasn't very far"; that the child was running fast; that when she saw the child run off the curb she knew she was going to be hit because the trolley car was so close; that "she couldn't escape if she was going...