Wash. Met. Area Transit Auth. v. Jones, 79-293.

• Decision Date: 24 March 1982
• Docket Number: No. 79-293.,79-293.
• Citation: 443 A.2d 45
• Parties: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Appellants, v. Brenda E. JONES, et al., Appellees.
• Court: D.C. Court of Appeals

443 A.2d 45

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Appellants, v. Brenda E. JONES, et al., Appellees.

No. 79-293.

District of Columbia Court of Appeals.

Argued En Banc November 23, 1981.

Decided March 24, 1982.

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Stephen A. Trimble, with whom Richard W. Turner, Washington, D.C., was on the opposition to the petition for rehearing en banc, for appellants.

Samuel Intrater, with whom Albert Brick, Washington, D.C., was on the petition for rehearing en banc, for appellee Brenda E. Jones.

Frank J. Martell, Washington, D.C., was on the petition for rehearing en banc, for appellees Brenda E. Jones and Clyde Jones.

Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, HARRIS,^* MACK, FERREN, PRYOR and BELSON, Associate Judges.

KELLY, Associate Judge:

This appeal constitutes the residuum of litigation arising from an intersection collision between a passenger car and a Metrobus on May 9, 1976. Seven separate lawsuits were filed by the parties to the accident.¹ The cases were consolidated for a bifurcated trial before a jury which began on April 24, 1978. On April 28, 1978, the jury returned a verdict against WMATA and the bus driver, Alvin Porch (hereinafter jointly referred to as "Metro/Porch"), on the issue of liability; and on May 5, 1978, the jury awarded damages in excess of $475,000. Metro/Porch moved for judgment notwithstanding the verdict, or, in the alternative, a new trial. The trial court denied the motions; judgment was entered in favor of the appellees; and this appeal was noted. A division of this court reversed as to all appellees, including, without explanation, the passengers in the Jones' vehicle, holding the doctrine of last clear chance inapplicable to the facts of the case.² Petitions for rehearing en banc were granted. We affirm.

I

There is no dispute that on May 9, 1976, at approximately 11:00 p. m., at the intersection of 12th & O Streets, N.W., a Chevrolet Monte Carlo, owned by Clyde Jones and driven by appellee Brenda Jones, collided with a Metrobus driven by Alvin Porch.

Jones' vehicle had approached the intersection traveling in an eastbound direction on O Street. O Street is a two-way street controlled by a stop sign at 12th. The bus was proceeding northbound on 12th, which is one-way in a northerly direction, and is divided into three lanes. There is no stop sign or traffic signal controlling 12th Street traffic at the O Street intersection. The weather was clear on the night of the accident. These two streets are straight and level as they lead into the intersection and both are lit by sodium vapor (bright white) street lamps. Each vehicle had its headlights turned on, and the bus was also illuminated by interior lights, destination sign and marker lights.

Brenda Jones and two of the passengers in the car all testified that she came to a complete stop at the sign at 12th & O Streets. Two witnesses and the bus driver testified that the Jones' vehicle did not stop. Margie Adams, who viewed the collision from outside her 12th Street home, approximately one-half block above the intersection, testified that the Jones' vehicle did stop at the stop sign, at a time when the bus was about a block away, at N Street, but then proceeded into the intersection where it appeared to again stop or stall.

Porch testified that as he approached the intersection traveling at a speed between 18 and 22 MPH, he moved from the center to the right lane. A witness who had been standing beside his parked car on the west side of 12th Street, between O & P Streets, stated at trial that the bus was traveling between 20 and 25 MPH. A passenger on the bus, whose deposition was read at trial, approximated the speed of the bus as between 25 and 30 MPH. He also noted that the bus increased its speed between N and O Streets.

Margie Adams was asked at trial to estimate the speed of the bus. She gave the following descriptions:

". . . it was really rolling."

* * * * * *

" . . . it looked like it was fast, fast, faster [than] it should have on 12th Street."

Porch testified that he first saw Jones when both the auto and the bus were approximately 40 feet from the intersection, traveling at the same rate of speed. According to Porch, he then checked the view to his left and right to see that there were no children playing near the street. When Porch next saw the Jones' vehicle, he was about 15 feet from the intersection and at that time he realized Jones would not be able to stop. Porch then took "evasive action." He "smash[ed] on the brakes" and swerved to the right. Porch testified that, following the collision, his brakes would not operate, so he proceeded towards a vacant lot on the right side of the road where the bus collided with a tree. Porch claimed that immediately before the accident his brakes were "working perfectly." He also stated that the accident occurred on the right-hand side of the intersection.

Jones also testified that her car had reached the far side of the intersection at the time of the collision. According to her version, she had looked in both directions before proceeding across the intersection, and although she and a passenger each testified that their view to the south was good, neither became aware of the bus until just before impact.

Eric Mines, the investigating police officer, gave testimony describing scuff marks found at the scene and damage to the two vehicles. He also stated that the speed limit on the two streets was 25 MPH.

The jury returned a verdict on liability based on the following answers to written interrogatories: Brenda Jones was negligent in the operation of her car but her negligence was not a proximate cause of the accident; Metro/Porch was negligent in the operation of the bus and that negligence was the proximate cause of the accident; the negligence of both Brenda Jones and Metro/Porch was not the proximate cause of the accident; finally, the jury found that Metro/Porch had the last clear chance to avoid the accident and that Brenda Jones did not.³

II

Appellants contend that they were entitled to a directed verdict or judgment notwithstanding the verdict because there was no evidence from which the jury could find Porch was negligent in operating the bus, and, even assuming some negligence on his part, it was not shown to be the proximate cause of the accident.

The trial court may properly grant motions for a directed verdict or judgment N.O.V. only when, viewing the evidence in the light most favorable to the party who secured the jury verdict, no juror could reasonably reach a verdict for that party. Webster v. M. Loeb Corp., D.C.App., 400 A.2d 319, 320 (1979). We have often stated that in intersection collisions the issues of negligence and proximate cause will almost always be questions of fact to be decided by the jury. Aqui v. Isaac, D.C.App., 342 A.2d 370 (1975); Spain v. McNeal, D.C.App., 337 A.2d 507 (1975); Shu v. Basinger, D.C.Mun. App., 57 A.2d 295 (1948). The jury must be allowed to weigh the credibility of the witnesses and resolve disputes as to speed and distances. Id. at 295-96.

It is only in a case where the facts are undisputed and, considering every legitimate inference, only one conclusion may be drawn, that the trial court may rule as a matter of law on negligence, contributory negligence or proximate cause. D.C. Transit System, Inc. v. Harris, D.C.App., 284 A.2d 277 (1971); Carter v. Singleton, D.C. App., 219 A.2d 114, 115 (1966).

In the instant case, there was conflicting testimony on basic factual issues; and several inferences could reasonably be drawn from the evidence presented. Therefore, we cannot hold that it was error to deny the appellants' motions for a directed verdict or judgment notwithstanding the verdict.

There was evidence introduced at trial that Porch was traveling at an unreasonable speed as he approached the intersection⁴ and that he failed to maintain a proper lookout.⁵ The jury could reasonably have predicated a finding of negligence on that evidence.

Appellants contend that because the testimony of Margie Adams was in the form of "adjectival descriptions," it was not a proper basis for liability under the rule of D.C. Transit System, Inc. v. Perry, D.C. App., 337 A.2d 224 (1975). We agree with the trial court that appellants have misconstrued Perry, in which this court held that in a passenger's suit against a common carrier, proof of negligent operation must be based upon "testimony consisting of something more than mere descriptive adjectives and conclusions." Id. at 225. Perry and Wiggins v. Capital Transit Co., D.C.Mun. App., 122 A.2d 117 (1956), on which it was based, were cases about a common carrier's liability to a passenger, and, in that context, the court would not permit a finding of negligence based solely on testimony that the bus "jerked and jarred." Such movements were "no more than the necessary or usual incidents of the operation of the conveyance" which are part of the risk assumed by passengers. D.C. Transit System, Inc. v. Perry, supra at 225. A passenger inside the bus is not able to establish a prima facie case of negligence by merely presenting a description of movement equally consistent with proper operation of the bus. On the other hand, testimony of unreasonable speed, given by a witness who was outside the bus, is not descriptive of movement consistent with proper operation of the bus, and is not within the holding of Perry.

The general rule is that a court will allow a lay witness to describe the speed of a vehicle in adjectival terms. Gober v. Yellow Cab Co. of D.C., Inc., D.C.Mun. App., 173 A.2d 915 (1961) (witness stated "driver was going too fast"); Dunn v. Marsh, 129 U.S.App.D.C. 245, 247, 393 F.2d 354, 356 (1968) (fire engine was "going pretty fast"); Smith v. Doyle, 69 App.D.C. 60 98 F.2d 341 (1938) (vehicle was "moving fast"). The testimony of excessive speed in this case was corroborated by...