Spund v. Myers

• Decision Date: 29 March 1937
• Citation: 67 App. DC 135,90 F.2d 380
• Parties: SPUND v. MYERS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

67 App. DC 135, 90 F.2d 380 (1937)

SPUND v. MYERS.

United States Court of Appeals for the District of Columbia.

Decided March 29, 1937.

Walter C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., for appellant.

A. Henry Walter, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

An appeal from a judgment of the lower court in favor of appellee as administratrix of the estate of Virginia Pflieger, deceased, for damages because of the death of the decedent alleged to have been caused by the negligence of appellant.

The declaration charged that on December 20, 1933, appellant, hereinafter called defendant, was operating his automobile on Connecticut avenue in Washington, D. C., in a negligent manner in the following particulars among others, to wit, without maintaining a proper lookout for pedestrians, and without having his automobile under control and that, as a result of the negligence alleged, his automobile collided with plaintiff's intestate and so injured her that she subsequently died.

The defendant by his plea admitted that he was operating his automobile at the time and place alleged, but denied that he collided with the deceased, and denied that he was guilty of any of the acts of negligence charged in the declaration.

It appears from the evidence that the injury to the deceased occurred between 8 and 9 o'clock p. m. on December 20, 1933; that deceased was standing in or crossing Connecticut avenue between street intersections about at the middle of the block between Porter and Rodman streets; that the defendant, who operated a market store on the east side of Connecticut avenue about a block south of Porter street, and about a block and a half from the scene of the accident, was driving north on Connecticut avenue in the direction of his home, after having closed his store at about 8 p. m.

The defendant testified that as he drove along the avenue he saw an object lying about thirty feet ahead of him at or near the east rail of the northbound railway track, and a little to his right; that he quickly turned his car sharply to the left, that is from east to west, to avoid striking the object and opened his right door the better to see what the object was; that finding it was a woman, and not having sufficient space to complete a turn to the left to park his car on the west side, he turned shortly to the right and then made a U-turn to the west side of the avenue, where he brought his car to a stop about opposite the point where the injured woman was lying; that he then went to her assistance and carried her to the car of a Mr. Hawes, who had stopped beside the defendant's car; that defendant thereupon lifted the woman into the rear seat of Hawes' car and held her in his arms until they reached Emergency Hospital. The injured woman died a few days later without having regained consciousness. The defendant denied that his car collided with the deceased.

It appears that it had been raining prior to this time and that the avenue was wet; that the place where the body was lying was a point between street crossings at about the middle of the square; that no witness testified to having seen the deceased struck by defendant's car, or by any other car.

At the time of the occurrence an automobile occupied by Daniel H. Kunkel and his wife was proceeding in the same direction with defendant's car and on the right side thereof, and near to the place where the body was lying. Mr. Kunkel testified that as he neared the place where the body was found Mr. Spund's car passed him on the left, and the witness then heard a thud and saw newspapers fluttering in the street to his left. Mrs. Kunkel testified that at this time she looked to the left through the windshield of their car and saw deceased standing in the street, that a car, which later proved to be Mr. Spund's car, then passed upon their left, and after the car passed she did not see the figure standing in the street; that it seemed as if the figure had been "mowed down"; that the Kunkel car was then driven to the curb and stopped and both Mr. and Mrs. Kunkel alighted from their car, but were delayed in reaching the spot where the body was lying because of passing cars; that when they reached the place they found that the body of deceased was being taken to a car, which had stopped on the opposite side of the street to render assistance. They testified that the defendant's car was being driven at a moderate rate of speed at the time of the occurrence; that the night was dark; that it had been raining; and that the lights from passing cars were reflected from the wet surface of the street.

Mrs. Kunkel also testified that she saw Mr. Spund's car make the U-turn ahead of their car, and that his car then had "no lights on"; that she did not notice whether the car had lights on it when it passed to the side...