Lindsey v. D.C. Transit Company

• Decision Date: 15 April 1958
• Docket Number: No. 2064.,2064.
• Citation: 140 A.2d 306
• Parties: Minnie LINDSEY, Appellant, v. D. C. TRANSIT COMPANY, a corporation, Appellee.
• Court: D.C. Court of Appeals

140 A.2d 306

Minnie LINDSEY, Appellant, v. D. C. TRANSIT COMPANY, a corporation, Appellee.

No. 2064.

Municipal Court of Appeals for the District of Columbia.

Argued November 12, 1957.

Decided April 15, 1958.

Harry C. Lewis, Washington, D. C., with whom Howard A. Vogel, Washington, D. C., was on the brief, for appellant.

Allan C. Swingle, Washington, D. C., for appellee. Edwin A. Swingle, Washington, D. C., also entered an appearance for appellee.

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

ROVER, Chief Judge.

By this appeal plaintiff seeks to reverse a judgment on a directed verdict in favor of Capital Transit in a suit to recover damages for injuries allegedly caused when the bus on which she was a passenger came to a sudden stop.

In her complaint plaintiff charged the bus company with specific negligence and in the alternative relied on the doctrine of res ipsa loquitur. Defendant countered with contributory negligence and alleged in its defense that the sudden stop was necessitated by a traffic emergency.

The testimony of both sides is plagued with conflict and variation; however, a fair appraisal of the testimony establishes that plaintiff boarded defendant's bus at 14th and P Streets, N.W., early one afternoon en route to her place of work. Rain had fallen throughout the morning and the streets were still wet. About one block from her destination, at 31st and P Streets, plaintiff left her seat and walked to the front of the bus where she stood facing the exit waiting for the bus to arrive at her stop. While holding on to a railing for support, "* * * all of a sudden there was a terrific jerk that threw me over into the windshield with my head, and the impact brought me back against that long rod there on the stairs, that got me all shook up temporarily, I didn't know just where I was for a moment or so." As a result plaintiff claimed injuries to her head, back, and neck. A passenger on the bus testified, "* * * the bus suddenly stopped, and she [plaintiff] struck her head against the window." On cross-examination plaintiff recalled seeing a parked delivery truck on the highway.

Testifying for the defense, the bus operator stated that the bus was traveling in a westerly direction on P Street at approximately 15 miles per hour. The width of the street and cars parked on the south side permitted only a single lane of traffic in either direction. His view was unobstructed, and when the bus was between 29th and 30th Streets he could see that a delivery truck was parked in his lane of traffic midway between 30th and 31st Streets. Almost simultaneously, the bus driver said, he observed a trailer truck traveling east on P Street, and realizing that the oncoming truck had the right-of-way brought his bus to a "normal stop" about one bus length behind the parked delivery truck. No collision occurred.

A police officer, testifying as a rebuttal witness for the plaintiff, stated that during his investigation immediately following the accident, the bus driver told him he had applied the brakes suddenly. Plaintiff in rebuttal quoted a similar statement made by the bus operator following the accident to the effect that he had applied the brakes to avert a collision.

Defendant's motion for a directed verdict at the conclusion of plaintiff's case was denied. In granting defendant's motion at the close of all evidence, the trial court ruled that by pleading and proving allegations of specific negligence, plaintiff was not entitled to go to the jury on the theory of res ipsa loquitur. The court further held that there were no facts from which defendant's negligence might be inferred. These rulings constitute the salient issues of this appeal.

Early cases in this jurisdiction hold that a plaintiff is foreclosed from the benefit of res ipsa loquitur where specific acts of negligence are alleged in the pleadings. This is also true where general negligence is pleaded and specific negligence is proved at trial. Pistorio v. Washington Ry. & Electric Co., 46 App.D.C. 479; Sullivan v. Capital Traction Company, 34 App.D.C. 358. The rationale underlying these decisions is that by pleading specific acts of negligence, a plaintiff reveals a definite knowledge of the negligent act causing the accident; or where proof of specific negligence is shown, the cause is no longer left to inference and the need for res ipsa loquitur is erased from the case.¹ Ross v. Pennsylvania R. Co., D.C.Mun.App., 55 A.2d 346, decided by this court after the Federal Rules of Civil Procedure, 28 U.S. C.A., and the adoption of similar rules by the trial court, followed the logic of the earlier cases. There appears to have been no departure from the Ross holding.

Generally, in cases where res ipsa loquitur is relied on, the plaintiff proves only his status, the fact of the accident, and his injury. Cole v. Capital Transit Co., 90 U.S. App.D.C. 289, 195 F.2d 568. A problematical area evolves when a plaintiff goes beyond this and alleges some of the details of the occurrence in his pleadings or at trial introduces some evidence of the circumstances of the accident. The question is then what degree of evidence bearing on the cause and conditions of the accident is necessary to render the doctrine inapplicable.

In the recent case of Loketch v. Capital Transit Company, 101 U.S.App.D.C. 287, 248 F.2d 609, 610, the court laid down this test:

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