Charles System, Inc. v. Juliano
| Decision Date | 24 July 1933 |
| Docket Number | No. 5792.,5792. |
| Citation | 66 F.2d 931,62 App. DC 283 |
| Parties | CHARLES SYSTEM, Inc., v. JULIANO. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John W. Price, David A. Pine, and Rees B. Gillespie, all of Washington, D. C., for appellant.
Thomas M. Baker and Milton Conn, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.
This is an appeal in a negligence case growing out of a collision between a rented motorcar and a pedestrian at a street corner in the city of Washington. The pedestrian, Libara Nasella, was plaintiff below, and his administratrix is appellee here; the defendants below were the Charles System, Incorporated, a motor livery company, owner of the car, and one Tutz, who hired and drove the car at the time in question. The accident occurred at or near the intersection of Eighth street and North Carolina avenue between 9 and 10 o'clock on a rainy September evening.
Nasella alighted from a street car bound south on Eighth street at the stopping place on the north side of North Carolina avenue.
He crossed Eighth street walking easterly toward his home on Ninth street, and when a few feet beyond the intersection of the streets he attempted to cross from the north to the south side of North Carolina avenue, when he was struck by the motorcar and injured.
This car was owned by the defendant company and rented to Tutz, who drove it himself, and who took the injured man to the hospital after the accident.
The contract of hiring between the defendants constituted a bailment with control in the bailee, and created no relation of master and servant or principal and agent between the parties, and there is no contention that the company was responsible for any negligence on the part of Tutz.
The theory of the claim against Tutz is that he drove negligently at the time of the accident; the theory of the claim against the defendant company is that it hired to Tutz a car with defective brakes, and that the company was negligent with respect to the brakes, and the inspection thereof, at the time of the hiring.
Tutz was served with process, made no appearance or defense below; judgment was taken against him; and he does not participate in this appeal.
At the close of all the evidence, the defendant company moved for a directed verdict, which was denied, the case given to the jury, a verdict rendered for $2,500, and from the judgment thereon this appeal is taken.
The thirteen assignments of error contend that defendant was entitled to a directed verdict on the whole evidence; that its motion to strike the testimony of a police officer who examined the brakes ex post facto should have been granted; and that certain instructions to the jury which it asked should have been given, but were denied.
The testimony tended to prove that plaintiff, in the rain, and in the dark, with a raised umbrella, attempted to cross North Carolina avenue a few feet east of the crosswalk and where Tutz had the right of way under the traffic regulations.
On the other hand, there was testimony that the foot brakes, when tested by the police officer very shortly after the accident, did not operate so effectively as required by another section of the same regulations, though the hand brake then appeared to be more powerful than the regulation required. A man sitting on the same seat with Tutz testified that he saw Nasella when they were about seventy-five feet apart; that he could not say Tutz saw him at that moment, but when they were about fifty feet apart Tutz applied the brakes, which did not hold; and he thought Tutz relied on the foot brake alone.
Another man riding in the car at the time testified that Tutz attempted to stop before striking Nasella, and that the car was going about twenty or twenty-three miles an hour when the attempt to stop was made.
Also, the police officer whose testimony was the subject of the motion to strike testified that he tested the brakes very...
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