Cobb v. Capital Transit Co., 8768.

• Decision Date: 05 February 1945
• Docket Number: No. 8768.,8768.
• Citation: 148 F.2d 217,79 US App. DC 364
• Parties: COBB v. CAPITAL TRANSIT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

79 US App. DC 364, 148 F.2d 217 (1945)

COBB v. CAPITAL TRANSIT CO.

No. 8768.

United States Court of Appeals District of Columbia.

Argued December 13, 1944.

Decided February 5, 1945.

Mr. Burton A. McGann, of Washington, D. C., for appellant.

Mr. Howard Boyd, of Washington, D. C., with whom Mr. Edward Bennett Williams, of Washington, D. C., was on the brief, for appellee. Mr. Edmund L. Jones, of Washington, D. C., also entered an appearance for appellee.

Before GRONER, Chief Justice and MILLER and EDGERTON, Associate Justices.

GRONER, C. J.

The single question in this case is whether the refusal of the trial court to grant plaintiff's instruction on the last clear chance doctrine was error. The suit was brought to recover damages for injuries sustained when the plaintiff was struck by defendant's street car at Ninth Street and Pennsylvania Avenue, Northwest, in the City of Washington.

At the point in question defendant's car tracks run east and west on Pennsylvania Avenue. The westbound track is on the north side of the middle of the street and the eastbound track, on the south side. The rails are a little more than four feet apart and the fairway between the tracks is approximately five feet (the exact measurements do not appear in the record). There is a loading and discharging platform running parallel with each set of tracks, and the platform for the westbound cars runs west from near the intersection of Ninth and Pennsylvania Avenue a distance of perhaps two hundred and fifty feet. The platform for the eastbound tracks is shorter by about fifty feet. At a point some distance from the accident plaintiff had boarded the westbound car and when it stopped at the part of the platform nearest Tenth Street, he got off the car — he did not remember whether he alighted at the middle or the front doorway, but he does remember stepping off "right at the end of the platform, the west end" — intending to cross to the south sidewalk to take a bus at the southeast corner of Ninth and Pennsylvania Avenue. His account of the accident is that before stepping off the westbound platform he looked to the east and then to the west and, seeing no car approaching, he stepped down from the platform onto the westbound track, looked to the east and then to the west and, seeing no car coming, he proceeded to cross the westbound track until within three or four steps of the eastbound rail, when he looked again to the west a distance of approximately one hundred and fifty feet and thought he could cross safely. At no time did he see the street car that struck him. He had previously testified that before he left the platform the car from which he had alighted had started and had "gone way up the line." None of plaintiff's other witnesses saw the accident or observed his movements until after he was struck. But the motorman and another witness testified he stepped from immediately behind the westbound car into the eastbound car. Like testimony was given by a passenger on a bus which had stopped at the curb on Pennsylvania Avenue, some fifty feet west of Ninth Street.

The applicability of plaintiff's own testimony to the last clear chance doctrine grows out of his statement that the car from which he had alighted had left the platform and gone some distance to the...