Landfair v. Capital Transit Co.

• Decision Date: 12 January 1948
• Docket Number: No. 9578.,9578.
• Citation: 165 F.2d 255,83 US App. DC 60
• Parties: LANDFAIR v. CAPITAL TRANSIT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 60, 165 F.2d 255 (1948)

LANDFAIR v. CAPITAL TRANSIT CO.

No. 9578.

United States Court of Appeals District of Columbia.

Argued December 3, 1947.

Decided January 12, 1948.

Mr. Jeff Busby, of Washington, D. C., for appellant.

Mr. Edward Bennett Williams, of Washington, D. C., with whom Mr. Howard Boyd, of Washington, D. C., was on the brief, for appellee.

Before STEPHENS, CLARK, and WILBUR K. MILLER, Associate Justices.

CLARK, Associate Justice.

The appellant, Mrs. Altha Marie Landfair, sued the appellee, Capital Transit Company, in the District Court of the United States for the District of Columbia to recover damages sustained when the automobile she was driving was struck by a streetcar. She appeals from a judgment entered on a directed verdict in favor of the appellee, on the ground that the trial court erred in granting a binding instruction to the jury to find for the defendant (appellee).

The facts giving rise to the suit follow. In the early evening of August 19, 1944, appellant was driving an automobile south on the west side of Fourteenth Street, in the Northwest section of the District of Columbia, and attempted a "U" turn at a point north of Arkansas Avenue. This street is fifty feet wide, and traversing its center are two sets of streetcar tracks, one for northbound and the other for southbound traffic. Each set of tracks is four feet and eight inches wide with a "dummy" space between of five feet and two inches. Appellant testified that she was traveling at a slow rate of speed, that she looked to the south for oncoming traffic and saw none, that she made the appropriate signal for her turn to following traffic, and then carefully attempted a "U" turn and her automobile was struck broadside by a streetcar as she crossed the northbound tracks. She gave explicit testimony that her view to the south in the direction of the oncoming streetcar was sufficiently good to allow her to see clearly as far as Shepherd Street, three blocks to the south of the point where the collision occurred. Appellant further testified that she looked to the south and saw no oncoming vehicles as late as that time when she was crossing the "dummy" space between the car tracks, not more than five feet from the point of impact.

The fact of the collision produces the inevitable conclusion that appellant must have seen the oncoming streetcar if she actually looked in its direction. Northern Pacific R. Co. v. Freeman, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014; Miller v. Union Pacific R. Co., 290 U. S. 227, 54 S.Ct. 172, 78 L.Ed. 285. The duty to look cannot be questioned. Chicago, R. I. & P. Railroad Co. v. Houston, 95 U. S. 697, 24 L.Ed. 542. Under comparable circumstances this court has previously rejected such testimony as that given by the appellant, declaring contributory negligence on the part of the injured person as a matter of law. Glaria v. Washington Southern R. Co., 30 App.D.C. 559; Faucett v. Bergmann et al., 57 App.D.C. 290, 22 F.2d 718. These rules apply where the plaintiff's case is based upon an allegation of last clear chance. Washington Ry. & Electric Co. v. Buscher, 54 App.D.C. 353, 298 F. 675.

The only other source of evidence in this case was a deposition taken from one Albert W. Gratke, plaintiff's witness, who was a passenger on the streetcar which collided with appellant's automobile. This deposition was introduced by plaintiff as part of her own case. Gratke was seated in a left front seat on the streetcar, immediately behind the motorman, and had an unobstructed view of the automobile prior to the collision. His testimony was that appellant began turning her car to make a "U" turn, but then swerved south in the direction of the streetcar, and then swerved again to her left, across the northbound streetcar tracks, when the streetcar was but 15 feet away from the automobile. He said the motorman applied the brakes on the streetcar lightly when the appellant's automobile was first observed turning to cross in front of the streetcar, the automobile then being approximately one and a half car lengths away, and that the brakes were applied with force by the motorman...