Rich v. District of Columbia

• Decision Date: 01 October 1979
• Docket Number: No. 13742.,13742.
• Citation: 410 A.2d 528
• Parties: Annette B. RICH, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 528

410 A.2d 528

Annette B. RICH, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 13742.

District of Columbia Court of Appeals.

Argued August 7, 1979.

Decided October 1, 1979.

Joseph D. Bulman, Washington, D. C., with whom Joel DuBoff and Arthur S. Feld, Washington, D. C., were on brief, for appellant.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Acting Corp. Counsel, Washington, D. C., when the brief was filed, Louis P. Robbins, Principal Deputy Corp. Counsel, Washington, D. C., when the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief, for appellee.

Before NEBEKER, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant seeks to reinstate a jury verdict in her favor which was set aside by the granting of a motion for a judgment notwithstanding the verdict and, alternatively, a new trial. We reverse both the judgment notwithstanding the verdict and the grant of a new trial, but remand the case for the trial court's consideration of (1) whether a new trial is warranted because of the amount of damages awarded, and (2) a possible remittitur.

I

On the night of December 2, 1975, appellant was walking north on 28th Street, N.W., in Georgetown. She crossed Olive Street, stepped up on the curb of the northwest corner of the intersection, and walked "a few steps." She then tripped and fell to the sidewalk, fracturing her right shoulder. Appellant described her fall as follows: "All of a sudden one leg went into a depression and the other foot hit something metal, and it was very fast. I just flew right through the air above this hole and metal and I landed on my right side flat on the ground. . . ." At the time of the occurrence, appellant did not see what caused her to fall.

Appellant returned to the corner one week later. She observed two holes in the brick sidewalk which were near a manhole cover. The holes resulted from several of the sidewalk's bricks being missing. Appellant later photographed the holes in mid-March of 1976. Those photographs, which were admitted into evidence, were identified at trial by appellant, who stated that they accurately depicted the sidewalk as it existed on December 9, 1975 — one week after the fall.

Gotz Schreiber, another resident of the neighborhood, also identified the scene depicted in the photographs. Schreiber testified that during 1975 and part of 1976 he walked past the northwest corner of 28th and Olive Streets every day on his way to and from work. He stated that from approximately the middle of November of 1975 through the winter of 1976 he noticed that near one of the manhole covers on the corner there were "a number of bricks either loose or totally missing so that there would be about a two or three inch deep hole, rather sizeable hole in the sidewalk there." He also stated that the photographs were a "fair representation [of the scene] except that occasionally there would be another loose brick in the hole which the next day wouldn't be there. Apparently some passersby might try to fill the loose brick back in and they would be gone again. So the actual hole would look slightly different from the one day to the next . . ." Schreiber added that, nevertheless, the hole was always wider than the width of one brick.

Appellant's description of the fall, as well as her and Schreiber's testimony concerning the photographs, was essentially the case as to liability. The defendant District of Columbia did not put on any testimony. After a motion for a directed verdict was made by the District and denied, the matter went to the jury, which returned a verdict for appellant in the amount of $55,000.¹ Subsequently, the District moved for judgment notwithstanding the verdict or, in the alternative, a new trial or a remittitur. Several months later, pursuant to Super.Ct. Civ.R. 50(c), the trial judge issued a written order granting the motion for judgment notwithstanding the verdict and, alternatively, the motion for a new trial. The court stated:

A review of the record reveals that plaintiff failed to establish what caused her to fall and sustain injuries. Plaintiff candidly stated that she did not see what caused her to fall. Although she testified to stepping into a "depression" in the obviously less-than-even surface of the brick sidewalk involved, the record does not support the conclusion that that "depression" was one of the two holes depicted in the photographs admitted into evidence, nor does plaintiff claim to know which, if either, of those holes caused her to fall.

It appears that defendant's motion for a directed verdict ought to have been granted, that the verdict was contrary to the weight of the evidence, and that the photographs depicting holes in the sidewalk ought not to have been admitted into evidence. The first of the foregoing conclusions warrants the granting of defendant's motion for judgment notwithstanding the verdict, and the latter two are the bases for the Court's granting of the alternative motion for new trial.

II

One of the reasons which the trial judge gave for granting a new trial was his belief that it was erroneous to have admitted into evidence the photographs taken by appellant of the scene. Although the judge focused on this aspect of the proceedings in reference to the motion for a new trial, the photographic evidence bears as well on the issue of granting a judgment notwithstanding the verdict. Therefore, we consider initially the question of the propriety of the introduction of the photographs.

Unquestionably, the admissions of photographs "rests within the sound discretion of the trial judge, `who is in the best position to determine whether [the photographs] properly reflect the testimony or the circumstances sought to be depicted.'" March v. United States, D.C.App., 362 A.2d 691, 704 (1976), quoting Mann v. Robert C. Marshall, Ltd., D.C.App., 227 A.2d 769, 771 (1967). However, the guidelines to be followed by a trial judge in determining admissibility are quite broad:

"It makes no difference, of course, when a picture was taken, if the evidence shows that the conditions are the same as when the accident occurred, or when the evidence shows the difference, if there is any." It has even been held that it is not necessary to prove the time of taking photographs where there has been no change in conditions. The real test is whether the photographs represent with fair accuracy the place of the happening and the physical conditions surrounding it. And photographs are admissible even when they contain points of difference between the time of taking and the time of the accident or injury, provided such differences are disclosed by testimony and made clear to the jury. [Washington Coca-Cola Bottling Works v. Kelly, D.C. Mun.App., 40 A.2d 85, 87 (1944) (footnotes omitted).]

See Mann v. Robert C. Marshall, Ltd., supra, at 771; Altemus v. Talmadge, 61 App. D.C. 148, 153, 58 F.2d 874, 879 (1932). Additionally, the testimony necessary to inform the jury of the accuracy of photographs may be provided by a witness who is not the photographer. Simms v. Dixon, D.C.App., 291 A.2d 184, 186 (1972); C. McCormick, Evidence § 214, at 530-31 (1972). Thus, reduced to its essence, the test of admissibility "is whether the photographs accurately represent the facts allegedly portrayed by them." Simms v. Dixon, supra, at 873; see D.C. Transit System, Inc. v. Acors, D.C.App., 293 A.2d 871, 873 (1972).

The photographs in this case meet that standard. They were asserted to be of the sidewalk at the northwest corner of 28th and Olive Streets, N.W., and were identified as such by appellant — the photographer — who testified as to the time she took them and that they accurately represented the "place of the happening" as she observed it a week after her fall. In similar fashion, Mr. Schreiber stated that the photographs correctly portrayed that area of the sidewalk, and that the holes shown in the pictures were in existence on the day of appellant's accident. Additionally, Schreiber made it clear to the jury that although the size of the holes would vary somewhat from time to time, on the day in question they were essentially the same size as the ones depicted in the photographs. In sum, the witness' testimony, which was thoroughly tested on cross-examination, demonstrated that the photographs accurately represented the facts allegedly portrayed by them. Accordingly, the photographs were properly admitted at trial.²

III

Given the propriety of the photographic evidence, the question becomes whether it, combined with the other evidence presented by appellant, was sufficient to take the case to the jury. If so, the judgment notwithstanding the verdict was granted erroneously.

Under Super.Ct.Civ.R. 50(b), whenever at the close of the evidence a motion for a directed verdict is not granted, the court is considered to have submitted the case to the jury "subject to a later determination [on motion for judgment notwithstanding the verdict] of the legal questions raised by the motion." Thus, in determining whether or not to grant a motion for a judgment notwithstanding the verdict, the trial court should entertain the same considerations as it does in ruling on a motion for a directed verdict. See, e. g., Proctor v. District of Columbia, D.C.App., 273 A.2d 656, 659 (1971); McSweeny v. Wilson, D.C. Mun.App., 48 A.2d 469, 470 (1946). The test to be applied on the latter motion has been oft-stated. For example:

The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in...