Peake v. Patrick

• Decision Date: 24 August 1945
• Docket Number: Nos. 299, 301, 300.,s. 299, 301, 300.
• Citation: 43 A.2d 763
• Parties: PEAKE v. RAMSEY (two cases). PATRICK v. SAME.
• Court: D.C. Court of Appeals

43 A.2d 763

PEAKE

v.RAMSEY (two cases).

PATRICK

v.SAME.

Nos. 299, 301, 300.

Municipal Court of Appeals for the District of Columbia.

Aug. 24, 1945.

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

Consolidated actions by Joyce Peake, by Virginia Patrick, by Brightie C. Patrick, her next friend, and by William Peake, against Carl B. Ramsey, arising out of an automobile collision, wherein the defendant filed a counterclaim in the action of William Peake and brought William Peake in as a third-party defendant in the other actions seeking contribution from him in the event that jury should find that other plaintiffs' injuries resulted from concurrent negligence. From judgments in favor of defendant in each of the three original actions, the plaintiffs appeal.

Judgments reversed with instructions to award new trials.

S. J. Pokrass, of Washington, D. C. (M. S. Mazzuchi, of Washington, D. C., on the brief), for appellants.

Wilbert McInerney, of Washington, D. C. (Lewis A. McGowan, Jr., of Washington, D. C., on the brief), for appellee.

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

HOOD, Associate Judge.

The actions below arose out of a collision between an automobile operated by Peake and one operated by Ramsey. Mrs. Peake and Miss Patrick were passengers in Peake's car, and they and he brought separate actions against Ramsey. In Peake's action, Ramsey filed a counter-claim; and in the actions of the two passengers Ramsey brought Peake in as a third-party defendant, seeking contribution from him in the event the jury should find that the passengers' injuries resulted from the concurrent negligence of Peake and Ramsey. The jury found in favor of Ramsey as defendant in each of the three original actions and in favor of Peake as defendant to Ramsey's counter-claim. No verdicts were returned in the third-party proceedings. Peake and the passengers have appealed.

The collision occurred in the intersection of Maryland Avenue and Eleventh Street, Northeast. The Peake car was going south on Eleventh Street and the Ramsey car east on Maryland Avenue. The front of Ramsey's car struck the right front fender and door of Peake's car. The intersection is controlled by traffic lights while were in operation at the time. Peake's testimony was that he entered the intersection on a green light and that the caution or yellow light did not appear until he was well within the intersection. Ramsey's testimony was that light controlling Maryland Avenue traffic turned from red to green before he reached the intersection and he entered on the green light. Taking into consideration the width of the intersection, the fact that the yellow or caution light appears for five seconds before the light changes from green to red, and the speeds at which the cars were travelling, it is obvious that if both drivers were accurate in their testimony, the collision would not have occurred. But the cars did collide, and it is rather plain that one of the drivers-perhaps both-tried to ‘beat’ the lights. This, of course, presented a question for the jury; and the verdict of the jury would have to stand, except for certain errors which we find occurred during the trial.

Peake was asked on cross-examination if he had stated to a police officer that the yellow light appeared before he reached the intersection and that he speeded up in order to get through. He denied making such statement. Officer Dunn, called as a witness by Ramsey, testified that Peake made such a statement to him shortly after the accident; and another officer testified to hearing Peake make the statement. On re-examination Peake was asked if he made the statement to the officer and upon his denial, was asked: ‘What did you tell him, if anything?’ Objection was made to this question on the ground that the answer would be a self-serving declaration. The court sustained the objection, and this, we think, was error.

The alleged admission of Peake that he entered the intersection after the caution light appeared not only contradicted his own testimony but also constituted an admission against interest on which the jury might have found that he was negligent in his attempt to pass the intersection. Other evidence of negligence on his part was slight; and, therefore, the question of whether he made this admission was vital to the issue before the jury. The opposing party having been permitted to give his version of the conversation with the officer, we know of no rule which prevented Peake from giving his version. ‘If it were competent for one party to prove this conversation, it was equally competent for the other party to prove their version of it.’ Carver v. United States, 164 U.S. 694, 697, 17 S.Ct. 228, 229, 41 L.Ed. 602. See also, Rost v. Kessler, 267 App.Div. 686, 49 N.Y.S.2d 97; Southern Transportation Co. v. Ashford, 5 Cir., 48 F.2d 191; City & Suburban R. Co. v. Svedborg, 20 App.D.C. 543, affirmed 194 U.S. 201, 24 S.Ct. 656, 48 L.Ed. 935; State v. Winkley, 14 N.H. 480. To confine the witness to a mere denial of making the statement and to refuse to allow him to testify to what he claimed constituted the true account of the conversation, constituted prejudicial error.

At the close of the testimony Ramsey offered instructions to the jury relating to contributory negligence of the passengers as a defense to their actions. The pleadings did not raise the issue of contributing negligence in the passengers' cases, but the trial court permitted Ramsey to set up this defense by amendments to the answers, and then granted the instruction. The passengers claim that they were prejudiced by this last minute amendment, made after the testimony was closed. Rule 15 of the trial court, identical with Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c gives the trial court wide discretion in the allowance of amendments both before and during trial. Without determining whether the trial court abused its discretion in this instance, we pass to what we consider the more substantial question. Did the evidence warrant an instruction on the question of contributory negligence of the passengers?

The collision occurred in daylight; the weather was clear and the streets dry. There was no evidence of excessive speed of the Peake car as it approached the intersection. The intersection was controlled by traffic lights and the light was green as the Peake car neared the intersection. Traffic was not heavy. There was nothing to cause the passengers to be apprehensive of peril or be on the alert for danger. Peake was a driver of five years' experience. His passengers were his wife and a young girl. They were not in control of the car and had no cause to anticipate that the one who did control the operation of the car would do any act to imperil their safety. Taking the strongest view against him, Peake's negligence occurred when he reached the intersection, saw the yellow or caution light, and, instead of stopping, increased his speed in an attempt to clear the intersection before cross traffic reached it. His decision to so act, and his action, would be almost instantaneous. The car would be in the intersection before the passengers would be aware of his decision. What could they do, or omit to do, for their own protection? Assuming Peake was negligent, his negligence could not be imputed to the passengers. Smith v. Doyle, 69 App.D.C. 60, 98 F.2d 341; Old Dominion Stages, Inc. v. Connor, 67 App.D.C. 158, 90 F.2d 403. Any contributory negligence preventing their recovery must be their own negligence in failing to exercise a proper degree of care. Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285. We find no evidence of such failure on their part.

The traffic regulations provide that when the yellow or ‘caution’ light is shown with the green or ‘go’ light, ‘traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, unless so close to the intersection that a stop cannot be made in safety.’ The decision to stop, or to proceed because a stop cannot be made in safety, must be the decision of the driver and not of his passengers. The decision must be made on the spur of the moment and any attempt by a passenger to direct or control the driver's action is more likely to confuse than to aid. If under such circumstances the passenger remains silent and trusts to the judgment of the driver, we see no basis upon which a jury could find the passenger guilty of contributory negligence. Burke v. Anacostia & P. R. Co., 48 App.D.C. 296; Bernhardt v. City & S. Ry. Co., 49 App.D.C. 265, 263 F. 1009; Drinon v. Wilson, 2 Cir., 113 F.2d 654; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123.

Ordinarily, contributory negligence is a question for the jury, but where there is no basis in the evidence for a finding of contributory negligence, it is error to instruct on the subject and thereby submit to the jury an issue outside the evidence. McCrate v. Morgan Packing Co., 6 Cir., 117 F.2d 702; Epperson v. Wright, 277 Ky. 205, 126 S.W.2d 123; Engler v. Reed, 53 Ohio App. 15, 4 N.E.2d 170.

One other question requires our consideration. By third-party proceedings in the passengers' actions, Ramsey brought Peake in as a third-party defendant. In so doing Ramsey's purpose was to obtain a judgment for contribution from Peake in the event the jury found that the injuries to the passengers resulted from the negligence of both...