Finney v. Capital Transit Co.

• Decision Date: 29 May 1952
• Docket Number: No. 11068.,11068.
• Citation: 198 F.2d 81,91 US App. DC 61
• Parties: FINNEY v. CAPITAL TRANSIT CO. et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

91 US App. DC 61, 198 F.2d 81 (1952)

FINNEY v. CAPITAL TRANSIT CO. et al.

No. 11068.

United States Court of Appeals District of Columbia Circuit.

Argued December 18, 1951.

Decided May 29, 1952.

Mr. Dennis Collins, Washington, D. C., for appellant.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. Howard Boyd, Washington, D. C., was on the brief, for appellees.

Before EDGERTON, CLARK and FAHY, Circuit Judges.

FAHY, Circuit Judge.

Appellant, plaintiff below in a personal injury action, appeals from an adverse judgment. The principal question is whether the trial court erred in refusing on request to instruct on the doctrine of the last clear chance.

Appellant, while riding a motorcycle along the southern side of Pennsylvania Avenue in an easterly direction, began to make a left hand turn onto 21st Street, N. W. There was testimony that he stopped in the middle of the streetcar tracks awaiting passage of westbound traffic. A streetcar of appellee, approaching in an easterly direction, collided with appellant, resulting in the injuries for which the action was brought.

There was evidence, which the jury was entitled to believe, that when appellant turned onto the tracks the streetcar was west of a loading platform at the western side of the intersection, proceeding at slow speed, that appellant was intent on watching westbound traffic before proceeding, that the streetcar did not stop, but accelerated its speed, and that its operator gave no warning.

This evidence would warrant a jury in concluding that appellee's operator was negligent and that appellant was contributorily negligent. But the jury could have concluded also that the operator, with the exercise of due care, could have become aware that appellant was in peril and was oblivious of the fact, and that, after becoming so aware, the operator could have brought the streetcar to a stop before the collision or could have warned appellant in time to enable him to avoid the collision. While the jury was not required to adopt this theory of the evidence appellant was entitled to an instruction on the last clear chance doctrine as applicable in this jurisdiction to such an evidential situation. In upholding the submission of such a question to the jury in a recent case, Capital Transit Co. v. Garcia, 1952, 90 U.S.App. D.C. 168, 194 F.2d 162, 163, this court said, "A plaintiff who appears to be oblivious to danger, although he would be quite able to avoid it if he knew of its existence,"...