Corson & Gruman Co. v. Zuber

• Decision Date: 23 June 1959
• Docket Number: No. 2347.,2347.
• Citation: 152 A.2d 566
• Parties: CORSON & GRUMAN CO., Inc., a body corporate, and Ferdinand Dews, Appellants, v. Ralph E. ZUBER and Irma Zuber, Appellees.
• Court: D.C. Court of Appeals

Page 566

152 A.2d 566

CORSON & GRUMAN CO., Inc., a body corporate, and Ferdinand Dews, Appellants, v. Ralph E. ZUBER and Irma Zuber, Appellees.

No. 2347.

Municipal Court of Appeals for the District of Columbia.

Argued March 23, 1959.

Decided June 23, 1959.

William T. Clague, Washington, D. C., with whom Stephen L. Jennings, Bethesda, Md., and Swingle & Swingle, Washington, D. C., were on the brief, for appellants.

Earl H. Davis, Washington, D. C., for appellees.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

On the morning of March 13, 1958, appellee Mrs. Zuber was driving her automobile on Beach Drive in Rock Creek Park when it was struck head on by a road roller which had gotten out of control and was proceeding on the wrong side of the road. The roller was the property of Corson & Gruman Co., a paving contractor, and was operated (or attempted to be operated) by Dews, an employee of the paving company. This action was brought by Mrs. Zuber and her husband against both the company and its employee for damages resulting from the collision. The answer of the defendants denied negligence and raised the defense of contributory negligence. Prior to trial the Zubers moved for summary judgment in their favor on the issue of liability. The motion was granted and the question of damages was submitted to a jury which awarded $2,000 to Mrs. Zuber and $1,000 to her husband. This appeal raises the single question of the propriety of the grant of summary judgment on the issue of liability.

It is well settled, of course, that summary judgment cannot be granted where there is an issue of fact; and it is equally well settled that ordinarily questions of negligence and contributory negligence are questions of fact, and only in exceptional cases may such questions be decided as a matter of law. In Cox v. Pennsylvania Railroad Co., D.C.Mun.App., 120 A.2d 214, 216, where the trial court had held a plaintiff contributorily negligent as a matter of law, set aside a verdict in his favor and granted judgment n.o.v. for the defendant, we, in reversing, said:

"It is settled in this jurisdiction that: `Only in exceptional cases will questions of negligence, contributory negligence and proximate cause pass from the realm of fact to one of law. Unless the evidence is so clear and undisputed that fair-minded men can draw only one conclusion, the questions are factual and not legal.' Shu v. Basinger, D.C.Mun.App., 57 A.2d 295. Even if the facts are undisputed contributory negligence is still an ultimate fact for the jury if reasonable men may draw different conclusions from such facts. Wright v. Capital Transit Co., D.C.Mun.App., 35 A.2d 183."

Such being the law where both parties have presented their evidence and have had the opportunity of cross-examining opposing witnesses, the rule applies even more strictly to the grant of summary judgment. Thus it is said in 6 Moore, Federal Practice, § 56.17[42] (2d ed. 1953): "Issues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner." The foregoing statement has met with approval. See, for example, Roucher v. Traders & General Ins. Co., 5 Cir., 235 F.2d...