J. Maury Dove Co. v. Cook

• Decision Date: 06 May 1929
• Docket Number: No. 4755.,4755.
• Citation: 32 F.2d 957
• Parties: J. MAURY DOVE CO. v. COOK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

32 F.2d 957 (1929)

J. MAURY DOVE CO. v. COOK.

No. 4755.

Court of Appeals of District of Columbia.

Submitted April 4, 1929.

Decided May 6, 1929.

Leon Tobriner, Byron U. Graham, and Charles W. Arth, all of Washington, D. C., for appellant.

Walter C. Clephane and J. Wilmer Latimer, both of Washington, D. C., for appellee.

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

ROBB, Associate Justice.

Appeal from a verdict and judgment for the plaintiff (appellee here) in a suit for damages sustained by being struck by defendant's truck while attempting to board a street car at a regular stopping place.

The action was based upon the following traffic regulation then in force in the District of Columbia: "When a street car has stopped, or is about to stop, for the purpose of taking on or discharging passengers, the driver of any vehicle which is being driven on the same street and in the same direction as such street car, and which has not as yet passed all doors of such street car or cars, shall bring his vehicle to a complete stop and shall remain standing until such street car has finished loading or unloading its passengers; Provided, That a vehicle which at the time such car stops, has not as yet passed the rear of such car, shall stop at a point eight feet from the rear of such car; Provided, however, that this restriction shall not apply where street car loading platforms or safety zones are established; in passing which, however, drivers shall exercise great caution."

The evidence for the plaintiff (here material) was substantially as follows: The accident occurred on February 8, 1926. Plaintiff then was 14 years old and a first-year student at Dunbar High School. School adjourned at 12:30. Plaintiff walked to the northwest corner of New Jersey avenue and N street to board a south-bound street car to her home in Anacostia. On reaching the corner, Rachael Hawkins, a schoolmate, joined her, and they stood on the corner for some time waiting for the car, plaintiff facing in one direction and her schoolmate in the other. Plaintiff heard the street car approaching the corner, but did not look in its direction, "but from the sound of it felt that it was about to stop. * * * She stepped off the curb and walked into the roadway, Rachael Hawkins walking behind her, and the next thing she knew she had been hit and knocked down by an automobile truck. * * * She was almost to the rear door of the street car when she was struck. She had been looking down the street but she saw the car when it stopped."

Rachael Hawkins testified that: "When she was in the street she first saw a truck coming. She was about half way from the curb to the car when she saw the truck was not going to stop and she turned and ran back to the curb. The street car had stopped when the truck struck Dorothy (plaintiff)."

A Mr. Carson testified that at the time of the accident he was on the northwest corner of New Jersey avenue and N street; "that he looked up New Jersey Avenue and saw the street car and a Maury Dove Coal truck approaching the corner of N street, side by side; that the street car got ahead of the truck before the car stop was reached; the truck did not stop when the car stopped. Two girls were standing on the sidewalk at the car stop and as the car approached the corner, he saw the girls step into the street, Dorothy Cook preceding Rachael Hawkins, and also saw the truck strike Dorothy Cook and knock her down." After the truck had gone some distance, the driver of the truck jumped and ran.

Andrew Williams, passenger on the car, testified that "the street car had stopped when the girl was struck."

The motorman on the street car testified: "That the North West corner of New Jersey Avenue and N Street was a regular car stop and there was no safety zone nor loading platform there; that at the time the plaintiff, Dorothy Cook, was struck by the truck, the street car was just coming to a stop; * * * that the truck passed by the street car whilst it was so coming to a stop; that after it struck the plaintiff, Dorothy Cook, it skidded in the snow and slush about eighteen feet before it came to a stop."

The conductor on the car testified that: "After the street car had stopped he was about to open the rear door for passengers when he saw the truck still coming from behind at a good pace and did not open the door because he thought it dangerous; heard a scream and then saw a colored girl lying in the middle of N street; truck had passed over her. Driver had abandoned truck in the middle of N Street."

At the close of plaintiff's evidence, counsel for the defendant stated that he was unable to produce any witnesses to the accident and had been unable to locate the driver of the truck, "who according to the evidence had jumped off the truck at the time of the accident and disappeared." Thereupon, the defendant prayed the court to instruct the jury as follows: "Whilst it is the duty of the driver of a vehicle going in the same direction of a street car, when such street car is coming to a stop or has stopped, to stop within eight feet of the rear of such street car, or to stop if it has not passed all the doors of the street car, yet it is the duty of one about to board a stopping street car and before leaving the sidewalk for that purpose to use reasonable care in ascertaining whether it is safe to cross the roadway for embarking. And if the jury find from the evidence that the plaintiff before leaving the sidewalk did not look or make any effort to ascertain whether it was safe for her to cross such roadway and that if she had looked or used reasonable care she would have seen the defendant's truck approaching and could thereby have avoided the accident, they will find for defendant."

The court declined to grant this prayer, and defendant excepted.

The sole question before us is whether under the facts of this case as disclosed by plaintiff's evidence, defendant not having pleaded contributory negligence, the question of contributory negligence should have been submitted to the jury. Where the question of contributory negligence is not raised by plea of defendant, it is the almost universal rule that the court may direct a verdict if plaintiff's evidence discloses contributory negligence as matter of law, but that if plaintiff's evidence merely tends to show contributory negligence the question is for the jury. Railroad Co. v. Carrington, 3 App. D. C. 101; Railroad Co. v. Webster, 6 App. D. C. 182; Dashields v. W. B....