Loketch v. Capital Transit Company

• Decision Date: 03 July 1957
• Docket Number: No. 13123.,13123.
• Citation: 101 US App. DC 287,248 F.2d 609
• Parties: Pauline LOKETCH, Appellant, v. CAPITAL TRANSIT COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

101 US App. DC 287, 248 F.2d 609 (1957)

Pauline LOKETCH, Appellant, v. CAPITAL TRANSIT COMPANY, Appellee.

No. 13123.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1957.

Decided July 3, 1957.

Petition for Rehearing Denied September 18, 1957.

Mr. Arthur S. Feld, Washington, D. C., with whom Messrs. Joseph D. Bulman, Sidney M. Goldstein and Samuel Z. Goldman, Washington, D. C., were on the brief, for appellant.

Mr. Francis L. Casey, Jr., Washington, D. C., with whom Mr. Paul R. Connolly, Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant, a bus passenger, was thrown down and injured when the bus came to a sudden stop. She brought suit against the bus company, appellee herein, and against one Dorothy Whalen, the operator of an automobile with which the bus collided. Appellant charged specific negligence on the part of both defendants. As against the appellee, she relied on res ipsa loquitur as well. The case came on for trial before a jury and at the conclusion of appellant's case, the trial judge granted appellee's motion for a directed verdict. This appeal is from the judgment entered on that verdict.¹

Usually, in cases where res ipsa loquitur is relied on, the plaintiff merely proves his status, the fact of the accident, and his injury. See Cole v. Capital Transit Co., 90 U.S.App.D.C. 289, 195 F.2d 568 (1952). Here, because there was a co-defendant as to whom res ipsa was inapplicable, appellant undertook to prove the circumstances of the accident. She called as witnesses both the driver of the bus and the operator of the automobile with which it collided. From the testimony of both witnesses emerge the facts we now state.

The bus, proceeding westward on K Street, Northwest, had stopped for a traffic light at the Sixteenth Street pedestrian crosswalk. The Whalen automobile drew up at the left of the bus and also stopped. When the light changed, both vehicles started to move. The automobile commenced a right turn into Sixteenth Street, across the path of the bus. The bus driver "hit the brakes" and brought the bus to a stop, but not before colliding with the right rear of the automobile. The bus driver said he started at a speed of about two miles per hour; Mrs. Whalen said she started at about eight or ten miles per hour. The bus had traveled only two to three feet when the automobile started to cut in front of it. The collision occurred and the bus came to a halt somewhat beyond the pedestrian crosswalk. The record does not indicate the width of the crosswalk.

Appellant contends that the doctrine of res ipsa loquitur precludes direction of a verdict, at least unless the defendant introduces evidence conclusively negating its negligence. Appellee's contention is that, if the plaintiff introduces evidence explaining the circumstances of the accident, res ipsa loquitur becomes inapplicable to a case to which it would otherwise apply. The correct rule lies between these two contentions.

That res ipsa may apply to passenger injuries in common carrier accidents is not questioned. By virtue of that doctrine, the jury may infer "that defendant had neglected to exercise that high degree of care owing by a common carrier to a passenger." Cole v. Capital Transit Co., 90 U.S.App.D.C. at page 290, 195 F.2d at page 569. Where it appears from the evidence, however, that the jury could not reasonably conclude that the accident was proximately caused by any fault on defendant's part, the defendant is entitled to a directed verdict. That the evidence negating the res ipsa inference of defendant's liability emanates from the plaintiff rather than the defendant may be unusual, but it is immaterial.

What is important is not the source of the evidence, but whether it altogether negates the defendant's prima facie liability flowing from the application of res ipsa loquitur. Evidence bringing to light the circumstances of the accident does not, as appellee contends, make res ipsa inapplicable. Washington Loan & Trust Co. v. Hickey, 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679 (1943). The doctrine becomes inapplicable when the circumstances have been so completely elucidated that no inference of defendant's liability can reasonably be made.

Appellee's theory is that its driver had no alternative but to apply his brakes as forcefully as he did, if he was to avoid a more serious collision with the Whalen car than actually ensued, and that the injury was therefore attributable solely to Mrs. Whalen's negligence in cutting in front of the bus. Cole v. Capital Transit Co., supra, involved a similar accident. An automobile driven by one Barnes cut in front of a street car and suddenly stopped, causing the street car to make a sudden stop. We said:

Assuming, without deciding, that the primary cause of the accident was negligence on the part of Barnes, still that was not the controlling issue in the trial of this suit between Mrs. Cole, a passenger, and the Transit Company. Here the Company, for the safety of its passengers, is held to the highest degree of care commensurate with the particular hazards involved, which, as to this case, means all the care and caution which a motorman of reasonable skill, foresight and prudence could fairly be expected to exercise under the conditions leading up to and resulting in the collision. Hecht Co., Inc., v. Jacobsen, 1950, 86 U.S.App.D.C. 81, 180 F.2d 13. The crucial question is not what the motorman did after he was faced with the emergency of the Barnes car, but how he happened to become involved in that emergency. Were the circumstances such that he by proper care and foresight should have apprehended danger of a collision? If so, regardless of the streetcar\'s preferred right of way, it became the motorman\'s duty to do all that reasonably could have been done to avoid the impending danger. Bell Cab Co., Inc., v. Coppridge, 1946, 81 U.S.App.D.C. 337, 158 F.2d 540; Wichita Transp. Corporation v. Braly, 10 Cir., 1945, 150 F.2d 315

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