Richardson v. Gregory, 15576.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 281 F.2d 626,108 US App. DC 263
• Docket Number: No. 15576.,15576.
• Parties: Harrison RICHARDSON, Appellant v. Thomas E. GREGORY, Appellee.
• Decision Date: 14 July 1960

108 US App. DC 263, 281 F.2d 626 (1960)

Harrison RICHARDSON, Appellant
v.
Thomas E. GREGORY, Appellee.

No. 15576.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1960.

Decided July 14, 1960.

281 F.2d 627

Messrs. J. H. Krug and Alvin L. Newmyer, Jr., Washington, D. C., for appellant.

Mr. Harry L. Ryan, Jr., Washington, D. C., with whom Mr. Duane G. Derrick, Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and BAZELON and BURGER, Circuit Judges.

BURGER, Circuit Judge.

Appellant, plaintiff in the District Court, appeals from a jury verdict for defendant-appellee in an action to recover damages for personal injury.

Plaintiff's testimony established that he was standing on a raised street car platform awaiting transportation. The platform was a concrete island 4½ feet wide and running about 18 inches from and parallel to the tracks; it rose above the street level about the same height as the nearby sidewalk. The plaintiff testified he did not see defendant's auto approaching from behind; the car struck plaintiff, spinning him into the

281 F.2d 628

street and causing severe injuries. The accident occurred at about 11:30 a. m. of a clear day

The defendant driver said he saw nothing of the plaintiff as he approached the platform, although there was nothing to obscure his vision. He admitted being aware of people standing on the platform. Defendant's wife, who sat beside him in the car, said she saw a blur near the right front of the car just as the impact with plaintiff's body was felt, and she exclaimed, after the impact, "something has hit the car." It was the defendant's contention that the plaintiff negligently walked into the car as it passed the area.

Expert testimony was introduced showing skid marks 28 feet long, which, it is argued, established that defendant did not apply his brakes until a point 44 feet beyond the point of collision. However, no excessive speed was shown. Other expert testimony revealed that the bumper of defendant's car could overhang the boarding platform and could have struck appellant. This supports the plaintiff's theory that defendant was not properly attending his driving duties and passed too close to the platform.

In view of defendant's plea of contributory negligence, plaintiff requested a jury instruction on the "last clear chance" rule. The District Court refused the request on the grounds that there was not sufficient evidence that the plaintiff was in a position where the defendant should have seen him. This ruling is attacked as erroneous. We are constrained to agree that it was error to so rule. The accident occurred near midday on a clear day with the driver's vision unobstructed. Competent testimony placed the plaintiff in a conspicuous place on the platform some distance away from others awaiting the street car. According to the testimony of an impartial observer, his position was clearly discernible from a point across the street. If, as defendant contends, he was driving at a safe speed and keeping a proper lookout his failure to see plaintiff standing near the edge of the platform, as plaintiff's testimony claimed, could reasonably be found to be negligence. This is even more likely if, as defendant speculates, plaintiff was close enough to have suddenly "walked into" the side of defendant's auto

The last clear chance doctrine "presupposes a perilous situation created or existing through the negligence of both the plaintiff and the defendant, but assumes that there was a time after such negligence had occurred when the defendant could, and the plaintiff could not, by the use of means available, avoid the accident." Dean v. Century Motors, Inc., 1946, 81 U.S.App.D.C. 9, 10, 154 F.2d 201, 202. Evidence was presented suggesting defendant negligently operated his auto. Similarly, if defendant's evidence is to be believed, the plaintiff was not exercising the care necessary for his safety. We thus need go no further in determining the propriety of a "last clear chance" instruction than to decide whether the evidence would have supported a finding that the defendant, in the use of ordinary care and prudence, could have seen the plaintiff's peril and avoided the accident. Rankin v. Shayne Bros., Inc., 1956, 98 U.S.App.D.C. 214, 234 F.2d 35, 38; Cobb v. Capital Transit Co., 1945, 79 U.S.App.D.C. 364, 148 F.2d 217; Dean v. Century Motors, Inc., supra. That question is not determined solely by the defendant's testimony that he did not see plaintiff; if the circumstances were such that the defendant should reasonably have been aware of plaintiff's danger and could have taken the proper precautions to avoid injury, the instruction requested was a correct one. We think the record here warranted that instruction.

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