Law v. Virginia Stage Lines, Inc.

• Decision Date: 13 May 1971
• Docket Number: No. 22017.,22017.
• Citation: 144 US App. DC 115,444 F.2d 990
• Parties: Reginald LAW, Appellant, v. VIRGINIA STAGE LINES, INC., A Corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

144 US App. DC 115, 444 F.2d 990 (1971)

Reginald LAW, Appellant, v. VIRGINIA STAGE LINES, INC., A Corporation, Appellee.

No. 22017.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1970.

Decided May 13, 1971.

Mr. Edward Jasen, Washington, D. C., with whom Mr. Robert Cadeaux, Washington, D. C., was on the brief, for appellant.

Mrs. Betty Southard Murphy, Washington, D. C., with whom Messrs. Richard R. Paradise and Frederick R. Tansill, Washington, D. C., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

This appeal from a jury award of $6,000 in a negligence case challenges the District Court's grant of a motion for judgment non obstante veredicto and, alternatively, for a new trial because of the insufficiency of the evidence to support the jury finding of liability. The record suggests that the trial court was disposed to grant appellee's request for a directed verdict at the close of the evidence but deferred to repeated admonitions from this court that the better practice in such situations is to let the case go to the jury and, if it finds liability, to set it aside.¹ This record may be said to present a test of the credibility of the policy we have pressed upon the District Court, since an actual, albeit unexpected, jury finding of liability generates some forces in and of itself against judicial nullification, one of which is certainly concern about appellate reversal. We find that the trial court in this instance would have been warranted in keeping the case from the jury; and, accordingly, we affirm the grant of judgment n. o. v.

I

Appellant testified that, in the interval between the time he left work at 4:00 P.M., and the happening of the accident at a few minutes after 10:00 P.M., he had drunk three cans of beer and three drinks of bourbon. Setting out, at long last, for home in his car, he needed to respond to a call of nature; and, accordingly, he got out of his car at 10th Street and New York Avenue, N.W., to go for this purpose to the Greyhound Bus Terminal, which is located on the southeast corner at 12th Street and New York Avenue. His route took him along the north side of Eye Street into the 1100 block, and, presumably under the pressures peculiar to his particular errand, he decided to cross Eye Street in the middle of the block. Eye Street is a one-way street going east in that block, but appellant (who is blind in one eye) testified that he looked in both directions, that it had just stopped raining, and that he saw no vehicles approaching. Crossing the street at what he said was a normal walking speed of two or three miles per hour, he was more than half-way across the forty-foot street when he suddenly became conscious of headlights and was struck by a vehicle which he never saw.

Appellant next called as a hostile witness the driver of appellee's bus. This witness testified that he had come out from a bus exit of the Trailways Bus Terminal at 12th Street, going north to the next intersection (12th and Eye), where he stopped because the red light was against him. When the light changed, he turned east on Eye Street. It was raining hard; the windshield wipers were going; and visibility was not more than half a block. After the bus went some 50 to 70 feet, he suddenly saw a man, running fast because it was raining and at a diagonal angle from the north side of the street. The man was some six or seven feet away when he first saw him, and he jammed on his brakes to make an emergency stop. This was unavailing, and man and bus came together.

Appellant called as a witness Officer Howe of the Accident Investigation Unit, who arrived at the scene at 10:40 P.M. The bus was halted in the street 24 feet south of the north curb. Appellant had by this time been taken to the hospital, but Officer Howe testified that the bus driver, as recorded in Officer Howe's notes, said that he saw a man "running out at me. I applied the brakes and just bumped him. I wasn't going fast — just made a turn." Officer Howe then went to the hospital to see appellant but could get no intelligible responses to his questions, since appellant was "very incoherent and mumbling." Appellant, said the witness, gave off a strong odor of alcohol, and the hospital chart indicated "alcoholic intoxication."

Appellant then presented a doctor who answered a hypothetical question to the effect that pure alcohol has no odor and that intoxication can only be determined from neurological or blood tests. Appellant's last witness was a supervisor from his place of employment who testified that appellant had presented no problems in terms of intoxication during the two years he had been in his current employment.

Appellant's proof having closed, a motion for a directed verdict was made, which the court took under advisement.² The only witness for the defense was Officer Hoefer, who investigated the accident in company with Officer Howe. He testified that the front of the standing bus was 116 feet from the 12th and Eye Street intersection. His notes were that the bus driver said that the man "came running out at him, and he applied the brakes and that he just bumped or brushed him." Officer Hoefer also went to the hospital and his experience there with appellant was the same as Officer Howe's, finding him incoherent, smelling strongly of alcohol, and apparently intoxicated. Officer Hoefer also said that he could not remember whether it was still raining when he arrived at the scene, but that the streets were wet.

The defense motion for a directed verdict was renewed at the close of the evidence, and the court stated its purpose to continue it under advisement. Appellant asked the court to instruct the jury on the doctrine of last clear chance, but the court refused because, in its view, the evidence did not justify the invocation of that doctrine as a basis of liability. After the jury brought in its verdict for appellant, the court granted the relief complained of here upon its finding that "the evidence conclusively established the negligence of the plaintiff and that it was the proximate cause of his injuries, and did not tend to establish negligence on the part of the defendant, and was such that a jury of reasonable men could not properly have reached the verdict which was reached. * * *"

II

At the close of appellant's case, the evidence adduced, taking it in the light most favorable to appellant, must have appeared to the District Court as it does to us. Appellant, who was blind in one eye and had been engaged in a substantial amount of drinking, in his haste to get to the toilet facilities of the Greyhound Bus Terminal as quickly as possible, crossed a downtown street in the middle of the block at night. A bus with its lights on had just pulled away from a red-light stop at the intersection at the end of the block, and had attained no great speed as yet when the driver suddenly saw appellant coming towards him only six or seven feet away. The driver immediately jammed on his brakes, but it was impossible to keep bus and pedestrian from meeting.

The Traffic and Motor Vehicle Regulations of the District of Columbia provide that "Every pedestrian crossing a roadway at any point other than a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon a roadway." Appellant testified that he looked to see if anything was coming when he started across the middle of the street but saw nothing. It is plainly evident from the record that the trial judge found this incredible, and we can understand why. Appellant was thus reduced to claiming that the evidence showed that the bus driver should have seen appellant in time to have taken action to avert the injury. But we agree with the District Court that the showing made in appellant's own case negatives the application of any such theory of liability.

Why the jury on this evidence brought in the verdict it did is not a question which lends itself to logical analysis. Its answer presumably resides in the mysteries of the perspective in which jurors view individual human conduct, on the one hand, and corporate bus companies, on the other. All we can be sure of is that the law in its wisdom has invested trial judges with the power to correct juries who base their verdicts on considerations not embodied in the evidence. Our only inquiry is as to whether the trial court in this instance, having first given the jury the opportunity to bring in a proper verdict on its own, thereafter exercised unacceptably the power it possesses to overturn the verdict which was brought in.

We think the District Court would have been fully justified in granting the defense motion for a directed verdict at the close of appellant's case. His showing was realistically consistent only with a conclusion of patent negligence on his part; and it provided no substantial basis for a finding that appellee was negligent. Indeed, as we have said in the past, where "the evidence as to primary negligence produced by the plaintiff is so weak that to submit it to a jury would be to allow them to speculate as to the defendant's negligence the question of contributory negligence does not enter * * *;" and in such a case a defense motion made at the conclusion of the evidence should be granted, or, when the trial judge lets the matter go to the jury, a judgment n. o. v. should be entered if there is a finding of liability. Capital Transit Co., Inc. v. Gamble, 82 U.S.App.D.C. 57, 58, 160 F. 2d 283, 284-285 (1947). See also Faucett v. Bergmann, 57 App.D.C. 290, 22 F.2d 718 (1927), where this court, on facts strikingly similar to those involved here, approved the trial court's direction of a verdict.³

Appellant's invocation of last clear chance does not, we think, dictate a different conclusion. We note preliminarily that,...