E. P. Hinkel & Co. Inc. v. Gerondikas, 388.

• Court: D.C. Court of Appeals
• Writing for the Court: CAYTON, Chief Judge.
• Citation: E. P. Hinkel & Co. Inc. v. Gerondikas, 48 A.2d 459 (D.C. 1946)
• Decision Date: 17 July 1946
• Docket Number: No. 388.,388.
• Parties: E. P. HINKEL & CO., Inc., v. GERONDIKAS et al.

48 A.2d 459

E. P. HINKEL & CO., Inc.,

v.GERONDIKAS et al.

No. 388.

Municipal Court of Appeals for the District of Columbia.

July 17, 1946.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Nicholas Gerondikas, an infant, by his mother and next friend, Mrs. Frances Gerondikas, and Mrs. Frances Gerondikas, against E. P. Hinkel & Co., Inc., for personal injuries and other damages resulting from a collision between defendant's motortruck and infant's bicycle. From a judgment for plaintiffs, the defendant appeals.

Affirmed.

Richard W. Galiher, of Washington, D. C. (Henry I. Quinn, of Washington, D. C., on the brief), for appellant.

Joseph D. Bulman, of Washington, D. C. (Sidney M. Goldstein, of Washington, D. C., on the brief), for appellees.

Before CAYTON, Chief Judge, and HOOD, and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

This was a suit for personal injuries and other damages resulting from a collision between defendant's motor truck and plaintiff's bicycle. Verdict and judgment were for plaintiffs. Defendant appeals, charging that the trial judge erred in refusing to grant a motion for directed verdict at the conclusion of all the evidence and a later motion for judgment non obstante veredicto.

Defendant's truck was proceeding south on Montello Avenue, Northeast. Plaintiff Nicholas Gerondikas, a 12-year-old boy, was riding a bicycle west on Penn Street, on a downgrade. Penn Street traffic at that point was controlled by stop signs which established Montello Avenue as a boulevard or favored highway. Plaintiff testified that on approaching the intersection he came to a stop ‘about right beside’ the stop sign which was 30 feet east of the curb line of Montello Avenue; that he looked both ways and saw a red truck coming toward him; that he decided the truck was a ‘safe distance’-half a block or a block-away and started across the intersection. On cross-examination he estimated the truck was about 100 feet, or half a block or a block away when he first saw it, and fixed the speed of the truck at 45 or 50 miles an hour. He did not look for or see the truck again until just before the impact. His testimony was supported in part by a companion who was riding a bicycle just ahead of him.

A police officer testifying for defendant said that when he interviewed the plaintiff at the hospital shortly after the injury, plaintiff told him he could not stop his bicycle.

The operator of defendant's truck testified that before entering the intersection he had been traveling 18 or 20 miles an hour; that he looked both ways and saw no one coming; that he crossed the Penn Street intersection and did not see plaintiff until he struck the truck; that after the collision he dragged plaintiff a little way but slammed on his brakes and stopped as quickly as he could, and helped plaintiff from under the truck.

In pressing its motion for an instructed verdict defendant argued the theory that plaintiff was guilty of contributory negligence as a matter of law. Developing the same theory here, appellant argues that plaintiff lost control of his bicycle coming down the hill, was unable to stop and ran into defendant's truck after it had passed the south curb line of the intersection; that even if it be true that plaintiff did stop at the traffic sign he was negligent in entering the intersection in the face of an immediate hazard, the fast moving truck a short distance away. In effect appellant asks us to rule as a matter of law that such was the situation and that the jury had no right to find otherwise. This we cannot do.

The testimony of defendant's driver that he had not exceeded 20 miles per hour must be considered along with that of the plaintiff who estimated the speed of the truck at 45 to 50 miles per hour. The testimony tending to show the collision occurred 10 feet past the south curb line of the intersection, and it was there that the police officers found markings indicating an object had been dragged, must be considered in the light of plaintiff's contention that he had been struck twice and that the markings merely showed where he had been hit the second time. As we see it, all...