Washington Gas Light Company v. Jones, 7745.

• Decision Date: 05 February 1975
• Docket Number: No. 7746.,No. 7745.,7745.,7746.
• Citation: 332 A.2d 358
• Parties: The WASHINGTON GAS LIGHT COMPANY, Appellant, v. Lillie Mae JONES, Appellee. The DISTRICT OF COLUMBIA, Appellant, v. Lillie Mae JONES, Appellee.
• Court: D.C. Court of Appeals

332 A.2d 358

The WASHINGTON GAS LIGHT COMPANY, Appellant, v. Lillie Mae JONES, Appellee. The DISTRICT OF COLUMBIA, Appellant, v. Lillie Mae JONES, Appellee.

No. 7745.

No. 7746.

District of Columbia Court of Appeals.

Argued June 11, 1974.

Decided February 5, 1975,

Rehearing En Banc Denied March 5, 1975.

Kevin J. Baldwin, Washington, D. C., for appellant in No. 7745.

Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant in No. 7746.

John C. La Prade, Washington, D. C., for appellee.

Before FICKLING, KERN and HARRIS, Associate Judges.

FICKLING, Associate Judge:

This is a consolidated appeal from a jury verdict in favor of appellee Lillie Mae Jones, who had brought suit against the Washington Gas Light Company and the District of Columbia for damages suffered when she tripped over a protruding gas box in a public street. The issues raised on appeal are: (1) whether the testimony of a witness as to the estimated height of the protrusion is probative in light of conflicting testimony based on precise measurement of the protrusion; (2) whether the protrusion is trivial as a matter of law and therefore not an actionable defect; and (3) whether the evidence is sufficient on the question of notice. We affirm.

On December 31, 1969, at approximately 8:30 p. m., Miss Jones, aged 71, alighted from a bus near the intersection of M Street and Connecticut Avenue, N.W.

After dismounting the bus and while crossing M Street in the crosswalk, Miss Jones stubbed her right foot on a 6" x 6" gas box which protruded from the surface of the street and she fell to the pavement injuring her knee.

There was conflicting testimony concerning the elevation of the gas box. Mr. Reams, a witness for the plaintiff, who photographed the scene of the accident and the gas box in particular, testified that he estimated the gas box to be 1/2" to 3/4" above the surface of the pavement. Mr. Sullivan, a gas company employee, testified that, using a metal tape measure, he measured the gas box and found it to be 1/4" to 3/8" above the surface.

With respect to the conflicting testimony, we find that Mr. Reams' testimony is admissible. It has long been recognized that testimony relating to estimates of distance, time, size, identity, and the like are admissible. 7 Wigmore on Evidence § 1977 (3d ed. 1940). If, as here, the admitted testimony leads to a conflict in the evidence presented as to the height of the protrusion, then the jury, as the trier of fact, is bound to resolve the conflict and determine the actual height of the gas box. Once opinion testimony is admissible, as is Mr. Reams' testimony, it does not subsequently become non-probative nor insufficient to support a verdict merely because of conflicting evidence.

On the question of whether the protrusion is trivial as a matter of law, appellants' reliance on Proctor v. District of Columbia, D.C.App., 273 A.2d 656 (1971), is misplaced. There, this court held that a 1/4" brick protrusion in a brick sidewalk was such a trivial irregularity that the trial court should have directed a verdict in favor of the District of Columbia. Unlike the instant case, in Proctor there was an inconsequential unevenness which is common to most brick sidewalks; here, there was a foreign object (i. c., gas box) protruding in a crosswalk according to evidence presented by appellee.^*

More relevant is Klein v. District of Columbia, 133 U.S.App.D.C. 129, 409 F.2d 164 (1969), in which the court held that a sidewalk elevator shaft door handle which protruded 3/4" was of a sufficient height to allow the jury to determine whether the District of Columbia was negligent in allowing this condition to exist. The court found "it impossible to say that reasonable men must necessarily find that such a protrusion . . . on a sidewalk is not unreasonably dangerous. . . ." 133 U. S.App.D.C. at 132-33, 409 F.2d at 167-68 (emphasis in original). Since here there is evidence that the gas box was 1/2" to 3/4" above the surface of the crosswalk, the protrusion was not trivial as a matter of law and it was not error to submit the case to the jury.

Finally, we find no error in submitting the question of constructive notice to the jury based on the photographic evidence in this case. District of Columbia v. Megginson, D.C.App., 250 A.2d 571 (1969). Affirmed.

HARRIS, Associate Judge, dissenting:

The plaintiff-appellee had crossed the street involved here on a regular basis for more than 30 years, without prior incident. On the evening in question, the intersection with which she was so familiar was well lighted, but she regrettably did trip and fall. She suffered modest injuries to a knee and an elbow, for which the jury awarded her $5,000.

The record is uniquely imprecise as to the cause of her fall, there even having been testimony to the effect that her first lawyer (not her present counsel) suggested to her some days later that the gas box was the object she had tripped over.¹ Nonetheless, interpreting the evidence in the light most favorable to Miss Jones, I could not say that the jury would have had to speculate to conclude that the gas box in the crosswalk prompted her to fall.

A witness for the plaintiff photographed the crosswalk. The photographs which were received in evidence reflect several other road surface conditions in that immediate area which are at least as irregular as the gas box. The witness did not measure the extent of the box's protrusion above the street. Rather, he merely estimated it at from 1/2 to 3/4 of an inch. A gas company witness made actual measurements. His results were 1/4 of an inch on the edge towards which Miss Jones was walking, with the highest dimension (on the south side, away from her) being 3A of an inch. While the photographer's rough estimate should have carried virtually no weight with the jury, I agree with the majority that his testimony was admissible. That leaves both the gas company and the District of Columbia saddled with a theoretical gas box height of 1/2 to 3% of an inch.

The District of Columbia "is not an insurer of the safety of travelers upon its streets and is only required to maintain sidewalks and roadways in a reasonably safe condition." District of Columbia v. Williams, D.C.Mun.App., 46 A.2d 111, 112, (1946). To be sure I sympathize with Miss Jones concerning her accident. Nonetheless, a judgment such as the one entered in this case ultimately must be satisfied by the city's taxpayers and by the utility's ratepayers. Where there is actionable negligence, that is only just. Yet even assuming causation, compensation does not automatically follow. In this case, I must part company with my Brothers, for I believe the trial court should have set aside the verdict and entered judgment for the defendants.

The majority discounts this court's opinion in Proctor v. District of Columbia, D. C.App., 273 A.2d 656 (1971), and relies dispositively (as did the trial court) on the circuit court's opinion in Klein v. District of Columbia, 133 U.S.App.D.C. 129, 409 F. 2d 164 (1969). My reading of those...