Evans v. Capital Transit Co.

• Decision Date: 22 November 1944
• Docket Number: No. 213.,213.
• Parties: EVANS v. CAPITAL TRANSIT CO.
• Court: D.C. Court of Appeals

39 A.2d 869

EVANS

v.CAPITAL TRANSIT CO.

No. 213.

Municipal Court of Appeals for the District of Columbia.

Nov. 22, 1944.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by James Evans against Capital Transit Company, a body corporate, for injuries sustained by plaintiff when he came in contact with the side of defendant's street car. Verdict and judgment for defendant and plaintiff appeals.

Affirmed.

I. Irwin Bolotin, of Washington, D. C. (Samuel B. Brown, Nathan M. Brown, and Benjamin B. Brown, all of Washington, D. C., on the brief), for appellant.

Edwin A. Swingle, of Washington, D. C. (Ernest A. Swingle and Allan C. Swingle, both of Washington, D.C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

RICHARDSON, Chief Judge.

Appellant, plaintiff below, was injured by contact with the side of appellee's streetcar while he was on a loading platform. After a jury trial there was a verdict and judgment for the defendant.

Plaintiff had crossed from the north sidewalk of U Street at 11th Street, N.W., to the east end of the car loading platform, intending to board a west bound streetcar. He looked but saw no streetcar approaching. Reaching the platform he walked along its south side toward the west end where cars usually stop to receive passengers. Half-way of the platform defendant's car passed him. He was struck by the side of the car at a point one-third of the length of the car from its front. The streetcar was making a normal stop at the western end of the platform to discharge passengers and came to a full stop before the motorman knew plaintiff had been struck.

The length of the car is not disclosed but the witnesses agree that a third of the car had passed when plaintiff was hit. The motorman testified that he turned as the car passed and observed plaintiff until he was 8 or 10 feet from the front end of the car.

The platform, elevated above the street level, is 70 feet long and 4 feet 2 inches wide. It parallels the car tracks and the side of the car involved passes one inch from its southern edge. ¹

Plaintiff testified that he was not aware of the approaching car until he was struck; that he did not hear any sound of the car or signal of its approach. The driver of an automobile, who had stopped for a traffic light in the space between the platform and the north sidewalk of U Street, immediately opposite the point where plaintiff was struck, testified that he heard the car coming before plaintiff was hit, and that he observed the accident; that one-third of the car passed before plaintiff was hit; and that he did not hear a warning bell. The motorman testified that as he approached the platform he observed plaintiff walking along the platform and sounded his bell.

There was no substantial conflict in the evidence except as to the sounding of the bell. The only errors assigned on the appeal relate to the refusal of the court to grant three prayers requested by the plaintiff.

I. An instruction on the last clear chance theory was submitted and refused. It stated in substance that if the jury found that plaintiff's own negligence contributed to the injury he might still recover if defendant's motorman realized, or under the circumstances should have realized, plaintiff's peril and his obliviousness to it, and failed to observe a requisite degree of care to protect him from injury.

The court instructed the jury that plaintiff had a right to be on the loading platform and to think that he was ‘in a place of safety’; that defendant ‘owed the plaintiff an affirmative duty and was bound to use that degree of care and caution for his protection which was reasonably required in view of the situation in which plaintiff had placed himself.’ This instruction shut out the defense of contributory negligence and that issue was not submitted to the jury. It assumed that a person standing or walking, as plaintiff then was, on any part of a loading platform has an absolute right to be there and may not be charged with contributory negligence for failing to hear or see an oncoming or passing streetcar, or for walking inattentively so close to the edge that his body would project beyond the platform and against the side of a passing car. The only question it left for the jury to decide was whether defendant was negligent. The instruction was more favorable to the plaintiff than that proposed by him, more favorable we think than the law authorized, ² and the refusal of his prayer was not error.

II. Plaintiff's second prayer was to the effect that if the jury should find that in the exercise of ordinary care the motorman should have sounded a warning of his approach, but neglected or failed to do so, and that the injury to plaintiff was the proximate result of his failure, then defendant was guilty of negligence and plaintiff should recover. We think this request correctly stated the law. However, in the charge given by the court the jury were told that defendant was bound to exercise that degree of care for plaintiff's protection which was reasonably required by the position in which he had placed himself. There was no specific mention of the sounding of a warning and no exception noted. ³ But what else could the jury consider under the court's instruction? Unlike other vehicles on our public streets a...