Smith v. Doyle

• Citation: 98 F.2d 341,69 App. DC 60
• Decision Date: 23 May 1938
• Docket Number: 6997.,No. 6996,6996
• Parties: SMITH v. DOYLE (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

69 App. DC 60, 98 F.2d 341 (1938)

SMITH v. DOYLE (two cases).

Nos. 6996, 6997.

United States Court of Appeals for the District of Columbia.

Decided May 23, 1938.

Henry I. Quinn, William T. Hannan, and Richard W. Galiher, all of Washington, D. C., for appellants.

Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

The plaintiff Doyle sued as administrator for the deaths of Charlotte B. Pogue and her husband, Robert E. Pogue, which resulted from a collision of two automobiles at the corner of 41st and Harrison Streets in Washington, D. C. Robert Pogue was driving the car in which Charlotte Pogue was riding. A separate action was brought on behalf of each against Damaris Smith, who drove the other car, and against her father, Lybrand P. Smith. All four actions were consolidated for trial. Those on behalf of Robert E. Pogue resulted in judgments for the defendants. Those on behalf of Charlotte Pogue resulted in a separate judgment for the plaintiff against each defendant, father and daughter, and each has appealed.

The Pogue car was going west on Harrison Street. Mr. Pogue was in a hurry and drove through a stop sign. The Smith car was going south on 41st Street. The driver, appellant Damaris Smith, and her sister were on their way to a party. Their father, appellant Lybrand Smith, was not with them. The sister was not present at the trial. Damaris Smith testified, but not concerning the collision. She had lost all memory of it, in consequence of a severe concussion.

Appellants urge that there was no evidence of negligence on the part of Damaris Smith, and that the court should therefore have directed verdicts for both defendants. They urge also that the court erroneously admitted evidence to their prejudice. The judgment against Lybrand P. Smith rests upon the "family-purpose" doctrine, and he contends that there was no evidence to support a finding that he maintained the car for family purposes.

Although they do not refer to the matter in their brief, appellants excepted to the admission of the testimony of the only available eyewitness that appellants' car was "moving fast." Such evidence is usually allowed. Cases are collected in I Wigmore, Evidence (2d ed., 1923) § 571; 4 Id. § 1977. Normal persons frequently form impressions of the sort with regard to passing cars, and these impressions have meaning and value. It would be arbitrary to exclude them, at least when, as here, speedometer readings and the like are not available. Appellants excepted, also, to the testimony of a witness who heard but did not see their car, that he could tell from the sound of a Ford V-8 whether the motor was going slow, ordinarily, or fast, and that theirs was traveling at a rather high rate of speed just before the accident. Appellants contend that inexpert testimony to speed, based on sound alone, is inadmissible, and cite cases which tend more or less in that direction. Laubach v. Colley, 283 Pa. 366, 129 A. 88; Johnson v. Wilson, Ind.App., 200 N.E. 729, reversed on other grounds, Ind.Sup., 5 N.E.2d 533; Challinor v. Axton, 246 Ky. 76, 54 S.W.2d 600 (all automobile cases); Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161, 75 S.W. 86. To the opposite effect are Nesbit v. Crosby, 74 Conn. 554, 565, 51 A. 550 (horse); Bennett v. Central California Traction Co., 115 Cal.App. 1, 1 P.2d 47 (street car); Van Horn v. B., C. R. & N. Ry. Co., 59 Iowa 33, 12 N.W. 752, and Missouri Pac. Ry. v. Hildebrand, 52 Kan. 284, 34 P. 738 (train). In the Nesbit Case the court said: "It is no objection to the question that the judgment called for was one based upon the exercise of the sense of hearing and not of sight. The law makes no such distinction between the senses." 74 Conn. 565, 51 A. 554. In the Bennett case the court said that it "is common knowledge possessed by every intelligent person, that the sound made by rapidly moving vehicles differs very materially from that made by those moving slowly, and that this fact is brought home to every one who walks the streets of our cities and hears the sound of passing vehicles." 115 Cal.App. 9, 10, 1 P.2d 51.

But we need not rule upon this point for even if there was error in the admission of the speed testimony to which appellants objected, it was harmless. We are to decide the appeal "without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, c. 48; 28 U.S.C.A. § 391. "A system of necessary rules of Evidence can exist and be obeyed, without affixing indiscriminately to every contravention of them the monstrous penalty of a new trial." I Wigmore, Evidence (2d ed., 1923), § 21. Several witnesses who were not on the street but in an adjoining house, and heard but did not see appellant's car, testified without objection that their attention was attracted by its "roar," which one of them called "much louder" than the ordinary noises of cars; that they heard the collision almost instantly, or "just a split second" after they first heard the approach of the car, although it had to traverse at least forty feet; and that the noise of the collision was very loud — one witness said, "like dropping a ton of plate glass off the Washington Monument." There was also testimony, based on sound, that the brakes were applied to appellants' car some forty feet north of the intersection. In view of all this evidence of speed, which was admitted without objection, the merely cumulative items to which appellants objected are unimportant and their admission, even if erroneous, was not so prejudicial as to require reversal. Harris v. United States, 50 App.D.C. 139, 269 F. 481; Belisle v. Lisk, 1 Cir., 16 F.2d 261; Reid v. Baker, 9 Cir., 288 F. 969.

We think the testimony we have summarized disposes also of the contention that the trial court should have directed a verdict in favor of appellant Damaris Smith. We think it supports, though it does not require, the conclusion that she drove at an illegal and negligent speed, and that this was a cause of the collision. Cf. Goodyear Service, Inc., v. Pretzfelder, 65 App.D.C. 389, 393, 84 F.2d 242. The inference is further supported by the testimony that practically the whole right side of the Pogue car was caved in. As the negligence of Mr. Pogue cannot be imputed to Mrs. Pogue,¹ it follows that her administrator may recover against Miss Smith.

The court instructed the jury that "As to the cases in which her father is defendant, * * * the essential elements are, first that the father maintained the car for family purposes, for the convenience of the members of his family, and that the car on this occasion was being used in the furtherance of the purpose. * * *" We think this a fair statement of the "family-purpose" or "family-car" doctrine, which "holds the owner of an automobile which was purchased and maintained for the pleasure of his or her family, liable for injuries inflicted by the machine while it was being used by members of the family for their own pleasure." 64 A.L.R. 844. The doctrine has been adopted in...