Dunn v. Marsh
| Decision Date | 02 February 1968 |
| Docket Number | No. 21169.,21169. |
| Citation | 129 US App. DC 245,393 F.2d 354 |
| Parties | Robert L. DUNN, Executor of the Estate of Ruth E. Hoover, Deceased, Appellant, v. William J. MARSH, Executor of the Estate of Margaret V. Marsh, Deceased, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before FAHY, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
Appellant, defendant in the District Court, is Executor of the Estate of Ruth E. Hoover, who met her death in a vehicular collision to be described. Appellee, who was plaintiff, is Executor of the Estate of Margaret V. Marsh, who met her death in the same collision. She was a passenger in the car driven by Ruth E. Hoover. This car was struck at a street intersection by a Fire Department truck responding to an alarm. The Marsh Executor sued the Hoover Executor alleging the collision was caused by the negligent operation of the car by Ruth E. Hoover, and that the Marsh next of kin sustained pecuniary loss by reason of the wrongful death of Margaret V. Marsh. Appellee obtained a jury verdict for $8,000.00 in damages, with judgment entered accordingly. We reverse for error in the instructions to the jury.
The Hoover car entered the intersection from the north. In doing so it passed no stop sign or signal. The fire truck entered from the west, passing a stop sign. There was evidence, however, that the fire truck was making audible and visual signals. This brought into play Traffic and Motor Vehicle Regulations, Section 50, which provides:
The jury could find that Ruth E. Hoover did not comply with this regulation. Accordingly they could find that she was negligent. The court properly submitted the issue to the jury. Appellant with reasonable basis contends that the over-all manner of the court's submission was to require the jury to find that Ruth E. Hoover was negligent, thus taking the issue away from the jury. We do not pass upon this alleged error, for reversal is required by the error we find in the instructions bearing upon the duty of the driver of the fire truck. Section 6 of the same regulations defines this duty:
As we have said there was a stop sign facing the driver of the fire truck as he approached the intersection. Yet there was evidence he did not slow down. The accident was investigated by an officer of the Accident Investigation Unit of the Metropolitan Police. He testified:
Another witness to the accident testified:
The speed of the fire truck bears on the issue of compliance by its driver with the regulation. There was no uniformity in the testimony about this. One witness said "it was going pretty fast." Another, "approximately 30 to 35 miles an hour." The investigating officer said the driver told him at the scene of the accident his speed was "25 to 30." The driver testified that when he made the statement he had just gotten off the hospital table and "had told the nurse that I was dizzy and not feeling too good," that he "was a little confused," and that "When I got myself together I told him the police officer it was 15 to 20."
The fire truck was the second of two fire apparatus responding to the same alarm. The first had passed the intersection, with siren sounding, before the accident. It was about half a block ahead of the second one, a distance not specified in yards or feet. There is no evidence one way or the other that as the first apparatus approached the intersection the Hoover car failed to comply with Section 50(a) (1), supra. It was November, and the windows of the Hoover car were up. Except for the emergency this car had the right of way;2 and there is no evidence whatever as to its speed. A witness to the accident testified that he heard only one continuous sound, and that he had his windows up.
In this evidentiary situation the jury could find that Ruth E. Hoover heard a continuous siren, did not distinguish between two sirens, saw the first engine pass the intersection, believed the emergency passed with the passing of this apparatus, and proceeded into the intersection at a reasonable speed. The jury could find this conduct to be negligent but were not required to do so. If the jury did find Ruth E. Hoover to be negligent it remained for them to decide whether her negligence was a proximate cause of the collision. If so, appellant was liable. Danzansky v. Zimbolist, 70 App.D.C. 234, 236, 105 F.2d 457, 459. If not, appellee was not entitled to recover. Richardson v. Gregory, 108 U.S.App.D.C. 263, 281 F.2d 626. This brings to the fore the issue of negligence and proximate cause on the part of the driver of the fire truck. The evidence clearly raised a factual issue whether the fire engine entered the stop-sign intersection at 35 miles an hour without slowing down, with the Hoover car already in the intersection, knocking it some 90 feet.3 Accordingly the jury, if properly instructed, could well have found that the fire truck driver was negligent. As to this, however, the court charged:
So far as the Fire Department apparatus is concerned, a Fire Department truck when responding to a fire and sounding a siren and blinking its red lights has the right of way over all other vehicles on the roadway. It is not bound by the speed limit * * *
So far, so good. But the judge immediately added:
and it is not bound to stop or even slow down at stop signs or to have regard for traffic lights. Consequently, it is not negligence on the part of the driver of a Fire Department vehicle under such circumstances to pass stop signs or traffic lights. * * *4
Defense objection to this instruction was sound.5 Those responsible for applicable safety regulations have considered the duties of drivers of fire apparatus to other vehicles and persons using the same streets and have decreed that the driver of such apparatus in responding to fire alarms may "Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation"; and that the provisions of the regulations "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons. * * *"
The question remains whether the error6 in failing so to instruct was harmless on the theory that in any event the jury was required to find Ruth E. Hoover was also negligent and that her negligence was a proximate cause of the accident. Even though we assume she was negligent we cannot assume further that her negligence necessarily was a proximate cause of the collision. This was to be decided by the jury under proper instructions as to the factors bearing on the negligence of the fire engine driver and the relation of such negligence, if found, to the cause of the accident. As the court instructed:
The proximate cause of an injury is defined in the law as that cause which in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.
This statement of the law has consistent support in the decisions of our court, which has often held that proximate cause is "that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which...
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Haith v. District of Columbia, 84-135.
...this clarification was inadequate, in our view, to negate the impact of the erroneous instruction. See Dunn v. Marsh, 129 U.S.App.D.C. 245, 248 n. 5, 393 F.2d 354, 357 n. 5 (1968). The judgment of the trial court is therefore reversed, and this case is remanded for a new trial or for other ......
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Lacy v. District of Columbia
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