Goodyear Service v. Pretzfelder

• Decision Date: 27 April 1936
• Docket Number: No. 6570.,6570.
• Citation: 65 App. DC 389,84 F.2d 242
• Parties: GOODYEAR SERVICE, Inc., v. PRETZFELDER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 389, 84 F.2d 242 (1936)

GOODYEAR SERVICE, Inc., v. PRETZFELDER.

No. 6570.

United States Court of Appeals for the District of Columbia.

Decided April 27, 1936.

Rehearing Denied May 20, 1936.

Cornelius H. Doherty, of Washington, D. C., for appellant.

Alvin L. Newmyer, David G. Bress, and Leon Pretzfelder, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from a judgment of the lower court for damages for injuries sustained by appellee in an automobile accident.

The appellee was plaintiff below and in her declaration alleged that the defendant, Goodyear Service, Inc., a corporation, on March 10, 1934, in the District of Columbia caused to be operated a certain automobile truck for the transportation of tires, and employed a certain chauffeur as its driver, and that on that day the plaintiff was walking across Woodley Place, a street within the city of Washington, D. C., from the east to the west curb, and that defendant's driver in the operation of its truck carelessly and negligently, at an excessive rate of speed and without giving warning of its approach, caused the truck to strike the plaintiff with great force, whereby she sustained serious injuries and for which she prayed judgment in damages.

The defendant company for its pleas admitted the ownership and operation by its employee of the truck named in the declaration and admitted also that the collision occurred with the plaintiff on the 10th day of March, 1934, but denied that it was caused through the negligence or carelessness of the driver of the automobile, and alleged that at the time and place stated in the declaration the plaintiff was guilty of negligence which caused the injuries, in that she failed to exercise reasonable care for her own safety; and that she violated the Traffic and Motor Vehicle Regulations of the District of Columbia, being Article II, § 2, Paragraph (b), and reading as follows:

"Vehicles shall have the right of way between crosswalks and between street intersections."

The defendant further alleged that the employee driver was proceeding north on Woodley Place, between the crosswalks, and it then and there became the duty of the plaintiff to use reasonable care to ascertain whether it was safe and proper to cross the street at the time and place, and to give the truck the right of way; but that plaintiff failed to use such reasonable care and that the negligence of the plaintiff was the cause of any and all injuries sustained by her by reason of the collision described in the declaration.

Issue was joined on June 20, 1934, and on June 3, 1935, a motion was made by plaintiff to set the trial date for the case, and on June 4, 1935, a motion was made by defendant to pass the case upon the ground stated in an affidavit filed as of that date. In the affidavit it was stated that on May 17, 1935, an operation was performed upon Mr. Doherty, counsel for the defendant, and that he had since that date been confined to the hospital and was then at home under the care of his physician, Dr. Zinkhan, and would not be in condition to return to his professional duties until after the 1st of July, 1935. Upon the same day the court denied the motion above set out to pass the cause for the term, and the trial of the cause was continued for one week. On June 12, 1935, the defendant moved the court to continue the cause for a month due to the illness of Mr. Doherty. An affidavit was filed at the same time verified by Mr. Doherty, that owing to the operation performed upon him he would be unable to enter upon a trial of the case and applied for a continuance of at least another month. An affidavit was also filed in the cause signed and verified by Dr. Zinkhan to the effect that on March 17, 1935, he performed a double Caldwell-Luc operation on Mr. Doherty who since that date has been under his professional care; that Mr. Doherty is still unable to attend to his professional duties, and, at affiant's insistance, due to the result of a severe, chronic infection, he must refrain from all professional activities for at least another month.

On June 12, 1935, upon consideration of the motion filed for a continuance it was denied. Thereupon the cause was tried to the jury resulting in a verdict for $7,000 for the plaintiff and judgment was accordingly entered thereon. The present appeal was then taken.

The appellant assigns as error the ruling of the trial court denying appellant's motion for a continuance because of the illness of his attorney, supported by the affidavits of the attorney and his physician. We cannot sustain this assignment. It is the conceded rule that such a motion is submitted to the sound discretion of the court and that the court's ruling thereon will not be disturbed except for an abuse of such discretion. In the present case it appears that the attorney in question was present in court at the time when the court passed upon the motion and that after the court's ruling, he took part in the trial of the case and pursued it with diligence to its close. And, moreover, because of a continuance of ten days granted in answer to his prior motion, counsel could have secured the assistance of other counsel for the trial; and the granting of a continuance for one month, as requested, would have resulted in the postponement of the trial of the cause until the following term of the court. Wherefore, we feel that the ruling of the lower court upon this subject should not be disturbed. Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229; Fields v. United States, 27 App.D.C. 433; Moens v. United States, 50 App.D.C. 15, 267 F. 317; Hawes v. Clark, 84 Cal. 272, 24 P. 116; and Dale v. Beasley, 141 Ga. 594, 81 S.E. 849.

The appellant also assigns as error the ruling of the trial court denying its motion for a directed verdict at the close of the plaintiff's evidence and likewise at the close of all the evidence, upon the ground that plaintiff's claim was not supported by the testimony. This leads us to consider the evidence set out in the record.

It appears that the accident in question occurred at about 9:45 a. m. on March 10, 1934, in full daylight at a point on Woodley Place about sixty feet north of its intersection with Woodley Road. Woodley Place is a street running north and south and is about twenty-four feet wide. At the time in question, the plaintiff, who was then about seventy-two years of age, left her residence a short distance north of the place of the collision and walked down the east sidewalk of Woodley Place until she came to a point near the middle of the block where she started to cut diagonally across the street to reach the opposite sidewalk. At the same time the defendant's truck, driven by its chauffeur, was coming north on Woodley Place from the opposite side of Woodley Road, and after crossing the road it struck the plaintiff, rendering her...