District of Columbia v. Chessin, 5500.

• Citation: 61 App. DC 260,61 F.2d 523
• Decision Date: 13 June 1932
• Docket Number: No. 5500.,5500.
• Parties: DISTRICT OF COLUMBIA v. CHESSIN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 260, 61 F.2d 523 (1932)

DISTRICT OF COLUMBIA v. CHESSIN.

No. 5500.

Court of Appeals of the District of Columbia.

Argued May 6, 1932.

Decided June 13, 1932.

Rehearing Denied October 8, 1932.

William W. Bride and Robert E. Lynch, both of Washington, D. C., for appellant.

T. Morris Wampler, of Washington, D. C., for appellee.

Before MARTIN, C. J., and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellee obtained a verdict and judgment in the Supreme Court of the District in the sum of $10,000 against appellant. (We shall hereafter speak of the parties as plaintiff and defendant.) Her declaration alleges that on the 7th of January, 1929, she was a passenger in an automobile then being driven at a lawful and proper rate of speed along Irving street northeast, in Washington. In passing over the intersection of Sixteenth street with Irving street, she claims to have sustained severe and permanent injury due to the presence of deep holes or depressions in the gutters crossing Irving street along the sides of Sixteenth street. Defendant's plea denied that there were any depressions at the intersection in question which rendered the street dangerous or unsafe to travel, or that it had any knowledge or notice that the place in question was dangerous or unsafe.

The evidence discloses that plaintiff's husband was driving a 1924 Jewett touring car; that his daughter, Adele, 18 years of age, was riding on the front seat with him; and that plaintiff and a Mrs. Levenson occupied the rear seat of the car. The accident occurred between 11:30 p. m. and midnight. Plaintiff's husband testified he was operating the automobile at approximately 12 miles an hour, or between 12 and 15 miles an hour, and, when the car reached the east gutter of Sixteenth street at its intersection with Irving street, there was a tremendous bump and the car proceeded across the intersection, and, upon reaching the gutter on the far side of Irving street, there was another bump, the result of which was to throw the occupants of the rear seat up against the top and down onto the floor of the car.

There are 55 separate assignments of error. Some are supported by proper bill of exceptions. Most are not. In the main the errors assigned relate to the admission or rejection of evidence and to improper conduct and argument on the part of plaintiff's counsel. The entire record of the trial is included in a single bill of exceptions, and this embraces not only the evidence stated in narrative form, but the entire speech of plaintiff's counsel in the opening and closing arguments to the jury.

As we may not consider any assignment of error not covered by proper exception, we have had to go carefully through the record of nearly 150 pages to determine what portions might and what might not be properly considered on this appeal. The first eight assignments are based on errors which, it is claimed, resulted in permitting plaintiff's witness, Anderson, to testify as an expert, and particularly to express opinions in relation to the dangerous character of the construction of the highway and the effect on the occupants of an automobile in the use of the highway at the point in question. Anderson testified he was a full colonel in the Engineer Officers' Reserve Corps, United States Army, and had been engaged in engineering work for 22 years; that he had been assistant professor of engineering at the University of Wisconsin, and had been employed by the war department as an engineer for the period of 15 years, 2 years in the Bureau of Mines in research work in engineering, and from 1917 to 1921 in the army service as an engineer officer, and since 1921 in private practice as consulting engineer and architect. Prior to the time he was in the army, he had been for a short time in the office of the city engineer, Madison, Wis.; that he had designed and superintended construction of the roads in the Garfield Hospital grounds, those in the American University grounds, the Marjorie Webster Girls' School, and a number of other institutions; and that he was at the time of his testimony engaged in building roads on the Schaeffer property, Rhode Island avenue and Four-and-a-Half street; that he had built at least 100 miles of roadway, and that his experience extended from coast to coast and covered various types of roads to meet the requirements and conditions of the locality. We think this was quite enough to qualify the witness to testify as an expert. Ordinarily the qualification of an expert witness, that is to say, his knowledge, skill, and experience, to express an opinion on a particular matter in issue is a question for the trial court, and the exercise of this discretion will not ordinarily be disturbed by an appellate court. Chateaugay Ore & Iron Co. v. Blake, 144 U. S. 476, 484, 12 S. Ct. 731, 36 L. Ed. 510; Stillwell & B. Mfg. Co. v. Phelps, 130 U. S. 520, 9 S. Ct. 601, 32 L. Ed. 1035; Montana R. Co. v. Warren, 137 U. S. 348, 11 S. Ct. 96, 34 L. Ed. 681; Inland & S. Coasting Co. v. Tolson, 139 U. S. 551, 11 S. Ct. 653, 35 L. Ed. 270. We think the discretion exercised by the trial court in this instance was not erroneous.

The specific answers of this witness to which objection was made and exception taken related in the first place to his evidence that the highway at the place or point in question was shown by measurements to have had an extreme drop or incline of 11½ inches from the center or crown, and his further statement that the standard rule in such cases would have permitted a maximum drop of not exceeding 3 inches and that such a rule had been announced and promulgated by the United States Bureau of Public Roads. He testified also, that at the intersection in question an automobile traveling at the rate of 15 miles an hour, or 22 feet per second, would, in passing over the depression, have a maximum spring movement downward from normal of about 5 inches and a similar rebound, and hence it would drop by reason of the depression and spring movement combined approximately 15 inches, together with a rebound or return movement likewise of 15 inches. We fail to see any proper objection to the admission of this evidence. It was amply shown that the recommendation of the bureau of roads referred to by the witness was general in its terms and was subject to modification according to local conditions and the requirements as to drainage, etc., and these were matters of defense which the evidence shows were abundantly covered by defendant's own evidence. The testimony of the witness with relation to the drop of the automobile in passing over the gutter was an engineering problem about which he was especially qualified to testify, and the effect of the drop on a rear-seat passenger was a matter about which the jury might draw their own conclusion out of their common experience.

Nor do we think there was anything prejudicial, or, for that matter, improper, in the action of the court in allowing plaintiff to introduce a cross-section plat or map made by this engineer showing the depression at the intersection. The difference in the scale as applicable to the horizontal and vertical was fully explained to the jury, and we do not think they could have misunderstood it, and what we have just said applies equally to the objection that the witness should not have been permitted to sketch the roadway on a blackboard. Witness was, as we have already seen, an engineer, and the sketch was intended to illustrate to the jury the meaning of the figures which he used. For such purpose we think it was entirely proper, and, as a matter of fact, we find nothing in the engineer evidence of defendant which challenges its substantial accuracy.

We pass, therefore, from this phase of the case to the exceptions founded upon the curtailment by the court of the cross-examination of some of plaintiff's witnesses by defendant's counsel. It suffices to say as to this that we have read the evidence carefully, and on the two or three occasions in which the cross-examination was somewhat limited we see nothing, nor is anything pointed out, which was in any sense prejudicial to defendant's case.

Exception was taken to the refusal of the court to allow the hospital records of the treatment received by plaintiff to be introduced in evidence and to the refusal to allow plaintiff's physician to be asked whether he had not forbade her receiving narcotics. We perceive no good reason for the refusal of the court to allow the records, when...