Klenk v. Capital Transit Company, 2082.

• Citation: 139 A.2d 275
• Decision Date: 05 March 1958
• Docket Number: No. 2082.,2082.
• Parties: Etta KLENK and Frederick Kienk, Appellants, v. CAPITAL TRANSIT COMPANY, a corporation, Appellee.
• Court: Court of Appeals of Columbia District

Page 275

139 A.2d 275

Etta KLENK and Frederick Kienk, Appellants, v. CAPITAL TRANSIT COMPANY, a corporation, Appellee.

No. 2082.

Municipal Court of Appeals for the District of Columbia.

Argued October 28, 1957.

Decided March 5, 1958.

Ralph H. Deckelbaum, Washington D. C., with whom Bernard Margolius, Washington, D. C., and Ben Greenspoon were on the brief, for appellants.

Francis L. Casey, Jr., Washington, D. C., with whom Frank F. Roberson, Washington, D. C., was on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The granting of a motion made at pretrial to dismiss a complaint alleging the negligent operation of defendant's streetcar is the basis for this appeal.

Suit was brought by plaintiffs Etta Klenk and her husband for personal injuries allegedly sustained by Mrs. Klenk while riding as a passenger on defendant's streetcar. According to the complaint and Mrs. Klenk's deposition taken by defendant and presumably considered at pre-trial, the plaintiff was thrown to the floor as she walked toward a vacant seat just after boarding the streetcar. Describing the accident in her deposition, plaintiff testified:

* * * I was walking back to the rear of the trolley, and I got about half way there, the car — the trolley — started off and it jerked. Well, then I grabbed hold of the seat, and it jerked again. Well, then I lost my balance and I went right down on my face."

As a result of the fall, injuries to her back, shoulder, and leg are claimed.

In a contrasting deposition the operator of the streetcar testified that he observed Mrs. Klenk walking toward a seat when he started the car in motion and that it neither "jerked" nor was brought to a sudden stop at this time. Four other passengers witnessed plaintiff's fall; however, the nature of their testimony is not known as depositions or affidavits apparently were not taken by either side.

Upon consideration of the pleadings, depositions and re-trial statements, the complaint was dismissed for failure to state a claim on which relief can be granted, and this appeal was taken from that order.

Rule 12(b) of the Municipal Court Civil Rules, which is substantially Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that where a motion to dismiss for failure to state a claim on which relief can be granted is made and matters outside the pleading are presented and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. The extrinsic material involved here in the form of depositions was presumably considered by the pre-trial judge in arriving at his decision to dismiss and has been included in the record on appeal. This material may therefore be considered in our review.¹

Ruling on the correctness of an order of dismissal, the United States Court of Appeals for the District of Columbia Circuit stated in Callaway v. Hamilton Nat. Bank of Washington, 90 U.S.App. D.C. 228, 231, 195 F.2d 556, 559:

"In dealing with the record on this appeal, however, we must observe the usual rule that on a motion to dismiss, the plaintiff's allegations are to be taken as true and all reasonable favorable inferences arising therefrom are to be indulged. * * * A motion to dismiss should not be sustained `unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim' set forth by the plaintiff. * * *"²

Thus, whether the validity of the order be determined under Rule 12(b) or Rule 56, the tests governing the disposition of the case are the same; and if plaintiff has failed to state a claim on which relief can be granted (Rule 12(b)), she has also failed to raise an issue of material fact and has failed to show that defendant is not entitled to judgment as a matter of law (Rule 56). Callaway v. Hamilton Nat. Bank of Washington, supra.

With these rules in mind, defendant's contention can more properly be brought into focus. It is urged that in proceeding on the principle of res ipso loquitur, plaintiff has failed to show one of the necessary elements or, more specifically, facts which give rise to a happening that would not occur in the absence of defendant's negligence. To support this position defendant cites the continuous use of the word "jerk" in plaintiff's deposition to describe the motion of the streetcar and the familiar principle in this and other jurisdictions that jerks and...