Robertson v. Washington Ry. & Electric Co.

• Decision Date: 06 March 1922
• Docket Number: 3659.
• Citation: 279 F. 180
• Parties: ROBERTSON v. WASHINGTON RY. & ELECTRIC CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

279 F. 180

ROBERTSON v. WASHINGTON RY. & ELECTRIC CO.

No. 3659.

United States Court of Appeals, District of Columbia.

March 6, 1922

Submitted February 10, 1922.

Appeal from the Supreme Court of the District of Columbia.

Rossa F. Downing and M. A. Easby-Smith, both of Washington, D.C for appellant.

Roger J. Whiteford, of Washington, D.C., for appellee.

SMYTH Chief Justice.

This is a tort action.The appellant, plaintiff below, charged that while she was a passenger on one of the defendant's street cars, she was injured through the negligence of the company's servants.She alleged that, as the car on which she was riding approached the intersection of V and North Capitol streets, Washington, she, desiring to alight at V street, which was at that time a stopping place, rang the signal bell.The car slowed down, and she then proceeded toward the platform for the purpose of alighting as soon as the car had stopped.As she did so, the car suddenly started up with an extraordinary jerk, whereby she was thrown violently against one of the seats and seriously injured.She described her injuries, and asked for damages.From a verdict in favor of the company, she appeals.

The first error assigned relates to the action of the court in sustaining an objection to part of the opening statement made to the jury by counsel for the plaintiff, in which he said he expected to prove that the crew in charge of the car at the time of the accident were inexperienced on account of the fact that they were strike breakers.No exception was taken to the ruling at the time, but, on application of counsel for the plaintiff, the court, when overruling the motion for a new trial, permitted an exception to be entered, it to have the same effect as if noted when the ruling was made.Counsel for the company denies the power of the court to do this.Whether or not it had the power is immaterial, because its ruling with respect to the statement was correct.There was no charge in plaintiff's declaration that the defendant had been negligent in the selection of the men who operated the car.Consequently there was no basis for the statement objected to.It is an old rule that the proof and the allegations must agree.The Divina Pastora, 4 Wheat. 52, 4 L.Ed. 512;United States Bank v. Smith,11 Wheat. 171, 6 L.Ed. 443;Harrison v. Nixon, 9 Pet. 483, 9 L.Ed. 201;Cucullu v. Hernandez,103 U.S. 105, 26 L.Ed. 322.Plaintiff, having alleged negligence in only one respect, could not prove it in another.

The next error complained of is the failure of the court to take judicial notice of the alleged fact that on the day before the accident a strike was inaugurated by motormen and conductors in the service of the company, and that their places were taken by strike breakers, who, it is said, were inefficient and careless in the management of the cars.But for what purpose should the court have taken notice of this fact, if it was such?That it might instruct the jury that they should consider it in determining whether or not the plaintiff was injured through the negligence of the company's employes in charge of the car?But no request was made that the court so instruct the jury.It cannot be said that the court erred in failing to do that which it was not requested to do.Guerini Stone Co. v. Carlin Construction Co.,248 U.S. 334, 348, 39 Sup.Ct. 102, 63 L.Ed. 275;Fillippon v. Albion Vein Slate Co.,250 U.S. 76, 39 Sup.Ct. 435, 63 L.Ed. 853;Budd v. United States,48 App.D.C. 332.Even if the court did take judicial notice of the fact that a strike prevailed, it could not assume, in the absence of proof, that the employes in charge of the car were strike breakers, or that they were negligent.It was stated at the bar, and not denied, that many of the company's motormen and conductors did not strike, but remained at their posts.There are other reasons why the court did not err in this respect, but those we have given are sufficient.

Plaintiff by her first prayer requested the court to submit to the jury the question of damages, and by her second prayer asked that the jury be instructed to return a verdict in her favor.The first was granted, and the second denied.The prayers were contradictory.If the jury found that she was not damaged as a result of the accident, it would have been their duty to return a verdict in favor of the defendant.That they might find a verdict one way or the other upon the subject was conceded by the plaintiff, by asking that the question be submitted to them.Had the second prayer been limited to the matter of negligence, there would be no inconsistence between it and the first.But it was not.It covered the entire case.Having granted the first, we do not perceive how the court could have given the second without confusing and misleading the jury, and a prayer which would have that effect should be rejected.Sweeney v. Erving,228 U.S. 233, 33 Sup.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905.

But we are not willing to place our judgment upon this ground alone.We think the second prayer, even if framed as we have indicated, would not have been proper.It is true that the testimony with respect to the accident was uncontradicted, but it does not follow from this that it conclusively established negligence.If it was open to more than one inference, the triers of fact alone were authorized to determine what inference should be drawn from it.Richmond & Danville Railroad v. Powers,149 U.S. 43, 13 Sup.Ct. 748, 37 L.Ed. 642;McDermott v. Severe,202 U.S. 600, 26 Sup.Ct. 709, 50 L.Ed. 1162;Thomas R. Riley Lumber Co. v. McHarg,47 App.D.C. 389.

Plaintiff testified that, after the car had passed Rhode Island avenue she rang the bell for the car to stop at V street; that the car slowed up, as she thought, and 'was coming to a stop, and it didn't'; that after ringing the bell she proceeded toward the door, and when she was midway of the car it made the most 'unmerciful jerk,' thereby causing her to fall against the conductor, and then over one of the seats, where she struck against a brass handle; that she made no complaint to the crew or to anybody else, at the time that she had been hurt, but went to her home.No report of the accident was made by the company's employes in charge of the car.Nor did the company know anything of the accident until about two weeks...