Felton v. Wagner, 84-359.

• Decision Date: 22 July 1986
• Docket Number: No. 84-359.,84-359.
• Citation: 512 A.2d 291
• Parties: Eliza A. FELTON, Appellant, v. Daniel E. WAGNER, Appellee.
• Court: D.C. Court of Appeals

512 A.2d 291

Eliza A. FELTON, Appellant, v. Daniel E. WAGNER, Appellee.

No. 84-359.

District of Columbia Court of Appeals.

Argued January 14, 1986.

Decided July 22, 1986.

Kenneth Shepherd, with whom David Santee Miller, Washington, D.C., was on brief, for appellant.

D'Ana E. Johnson, with whom James C. Gregg, Washington, D.C., was on brief, for appellee.

Before NEWMAN and TERRY, Associate Judges, and PAIR, Senior Judge.

TERRY, Associate Judge:

This is a personal injury action involving a pedestrian and an automobile. Appellant, the pedestrian and plaintiff below, received a favorable jury verdict at the first trial, only to see it set aside and a new trial ordered on the grounds that the verdict was against the weight of the evidence and that appellee might have been prejudiced by a reference to insurance made by appellant's medical expert. A new trial was held, at which the jury returned a verdict in favor of appellee, the defendant and driver of the automobile. Appellant contends on this appeal that the first trial judge abused his discretion in granting a new trial. Alternatively, she argues that the second trial judge erred in refusing to instruct the jury on the doctrine of last clear chance. Finding no error in either ruling, we affirm the judgment.

I

Appellant was injured while attempting to cross Connecticut Avenue in the middle of the block between H and I Streets, N.W. Although the facts proven at the two trials were substantially the same, it will be useful for us to summarize the evidence presented at each trial separately in order to decide the issues on appeal.

A. Trial No. 1

Appellant, Eliza Felton, testified that at about noon on May 9, 1980, she had just left her bank and was on her way back to work when she crossed Connecticut Avenue in the middle of the block between H and I Streets, N.W. Traffic was congested, and cars were parked in the curb lanes on both sides of the street. Appellant made her way between two parked cars on the west side of Connecticut Avenue, and walked in front of a wide-bodied bread truck that was double-parked and blocking traffic in the southbound lane.

Mrs. Felton testified that she safely passed the bread truck, reached the double yellow line, paused, looked both ways before proceeding, and took two to three steps into the northbound traffic lane. Suddenly, she saw appellee Wagner's car approach from the left as it pulled around the bread truck. The car had crossed over the double yellow line and was headed straight at her. She froze, not knowing which way to go, and was struck by the car's right front fender. Mrs. Felton said that there was room for Mr. Wagner's car to pass safely on either side of her.¹

Mr. Wagner testified that the traffic on Connecticut Avenue between H and I Streets was extremely congested that day. He first noticed the bread truck when there were three to five cars separating the truck from his car. "From that angle," he said, "I could not see what was in front of the bread truck." While proceeding southbound, Mr. Wagner's car was in first or second gear, and was not moving faster than ten or fifteen miles an hour. He had a "clear lane of traffic" in which his car was able to pass the bread truck without crossing the center line, and he denied having ever crossed the double yellow line at any time before his car collided with Mrs. Felton. Wagner said he did not see any pedestrians crossing the street before he proceeded around the bread truck; however, when he was just a few feet past the bread truck, he suddenly saw Mrs. Felton and realized that she was about to walk into his car. He testified that Mrs. Felton was not paying attention as she was crossing the street, and that she walked into the side of his car "at a point in contact approximately six inches to a foot in front of the front edge of my right-hand door." Mr. Wagner added that he had recently waxed his car, and that after the accident the only mark of any kind on the car was a scraping of wax at the precise point where he said contact was made, namely, where the windshield meets the right front door hinge.

Louis Blanks, the bread truck driver, testified that he saw Mrs. Felton walk in front of his truck "reading a pamphlet, or a book." He continued to watch her "all the way, and then, when she passed the truck, she kept reading, and I heard her scream and saw her hit by a car." Mr. Blanks said that the portion of the car that struck Mrs. Felton was "[c]lose to the door, the windshield." He also said that Mr. Wagner's car did not cross over the double yellow line.

Ronald Rouse, a cab driver, was driving his cab north on Connecticut Avenue. At the moment Mrs. Felton was injured, however, the cab was not moving because of the traffic congestion. Rouse testified that he noticed Mrs. Felton because "to me, she wasn't paying attention to where she was going." As he watched, "[s]he walked off the curb . . . looking in the opposite direction, like she was waving at someone,² and she walked directly into the side of [Mr. Wagner's] car." To Mr. Rouse it appeared that she collided with the "rear of the front fender, or the side of his door." Mr. Rouse opined that Mr. Wagner could not have been going more than two to three miles per hour, because "[t]here was traffic in front of him and it was very congested in that area." Moreover, Mr. Rouse "did not see [Wagner's] car cross over any lane."³

The jury returned a verdict in favor of Mrs. Felton. Four and a half months later, however, the trial judge granted Mr. Wagner's motion for a new trial on the ground that the jury's verdict was contrary to the clear weight of the evidence⁴ In his order, the judge said:

[B]oth of the disinterested eyewitnesses who testified at the trial [Blanks and Rouse] corroborated the defendant's testimony concerning the sequence of events leading up to the accident. This testimony was to the effect that the plaintiff, crossing Connecticut Avenue in the middle of the block, walked into the side of the defendant's vehicle an instant after walking from in front of an idling bread truck. In the Court's opinion the weight of this evidence coupled with the prejudice which the defendant may have suffered as a result of Dr. Azer's gratuitous comment concerning his policy of not testifying for insurers[⁵] requires the granting of a new trial to prevent a miscarriage of justice.[⁶]

B. Trial No. 2

At the second trial, Mrs. Felton's testimony was essentially the same as it had been at the first trial. In particular, she stated:

When I got to the double yellow lines, I looked southward towards the White House and there was no traffic coming . . . and then I looked to my left, towards I Street . . . and I didn't see anything. . . . So, I stepped out a couple of steps, and as I stepped out, out [of] the corner of my eye I glimpsed this small car or object coming from around that truck. And then I just froze. I didn't know what to do. The next thing I knew, I was hit.

Morris Manley testified on behalf of Mrs. Felton as an eyewitness. He said he was standing three doors down from the bank at the corner of Connecticut Avenue and H Street when Mrs. Felton was struck. Manley said he recognized appellant as she crossed the street because he had previously "seen her come to a neighbor's house that lived downstairs." He saw her as she stepped past the bread truck, "and then all of [a] sudden" he saw Mr. Wagner's car pull up. Wagner appeared to be a little angry, he said, "because the traffic wasn't moving." Then suddenly Mrs. Felton was hit by the car. According to Mr. Manley, the car was at an angle when it hit her, and its rear end "was sticking out into the other side of the street" over the double yellow line.

Mr. Wagner testified on his own behalf, repeating most of his testimony from the first trial. He stated that as he pulled past the bread truck, Mrs. Felton "walked into the side of my car impacting at the approximate point where the front meets the windshield. . . ." He again denied having crossed the double yellow line, except possibly after the impact "because of the reaction to turn away from where she impacted on my car." He also said that he was driving in first gear because of the traffic congestion and could not have been traveling more than ten or fifteen miles per hour.

Judge Revercomb, who presided over the second trial, declined to instruct the jury on the doctrine of last clear chance, despite the fact that Judge Kennedy had done so in the first trial. Judge Reyercomb concluded that this was not a last clear chance case because no evidence had been presented to show that Mr. Wagner knew or should have known of Mrs. Felton's peril. The case went to the jury, which returned a verdict in favor of Mr. Wagner. From the judgment on that verdict, Mrs. Felton brings this appeal.

II

Appellant contends that Judge Kennedy, the first trial judge, abused his discretion by ordering a new trial on the ground that the verdict was against the clear weight of the evidence. We disagree.

A ruling on a motion for new trial is committed to the sound discretion of the trial court, and our scope of review is limited to whether there has been an abuse of that discretion. Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1110 (D.C. 1986); Rich v. District of Columbia, 410 A.2d 528, 535 (D.C. 1979). When the trial court has denied the motion, thereby sustaining the jury's verdict, our scope of review is very narrow indeed. Oxendine, supra, 506 A.2d at 1111; Rich, supra, 410 A.2d at 535; Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 113, 409 F.2d 145, 148, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969). But when, as in this case, the trial court grants the motion after determining that the verdict is against the weight of the evidence, we will closely scrutinize the record to ensure that the trial judge did not simply prefer one version of the facts over another, see Oxendine, s...