Weber v. Eaton

• Decision Date: 10 March 1947
• Docket Number: No. 9299.,9299.
• Parties: WEBER v. EATON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 66, 160 F.2d 577 (1947)

WEBER v. EATON.

No. 9299.

United States Court of Appeals District of Columbia.

Argued January 15, 1947.

Decided March 10, 1947.

Mr. Henry I. Quinn, of Washington, D. C., for appellant.

Mr. Michael F. Keogh, of Washington D. C., with whom Messrs. J. Robert Carey and Richard H. Love, both of Washington, D. C., were on the brief, for appellee.

Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices.

WILBUR K. MILLER, Associate Justice.

The appellant, Mrs. Hazel Weber, seeks reversal of a judgment against her for $8,000 awarded to Mrs. Gertrude M. Eaton, the appellee, by the District Court of the United States pursuant to the verdict of a jury. Mrs. Eaton was injured on the evening of February 22, 1944, while she was riding in Mrs. Weber's automobile on Wisconsin Avenue in the District of Columbia. Mrs. Weber was in Florida. Her husband, Herbert E. Weber, used his wife's car in calling at the Westchester Apartments for Mrs. Eaton in order to take her to a dinner or bridge party to which they both testified they had been invited. It was raining, or had been raining, and the streets were wet and slick.

After leaving the Westchester, Weber turned into Wisconsin Avenue and proceeded toward the south. While the car was traveling at what both he and Mrs. Eaton described as a moderate rate of speed, and just after passing a streetcar which was moving in the same direction, the automobile suddenly turned or skidded in front of and was struck by the southbound streetcar, and almost immediately was hit by another streetcar which was northbound. The automobile was sandwiched in between the two cars and it was then that Mrs. Eaton was hurt.

She and Weber were taken to a hospital and Weber was released as soon as his injuries had been dressed. A police officer who was investigating the accident then returned him to the scene and there interrogated him. He testified, without objection, that when asked the reason for the odor of alcohol on his breath, Weber said he had taken two cocktails or two drinks just prior to the collision and, as the officer understood, at Mrs. Eaton's apartment. With reference to the accident, Weber first said that he thought he had struck the curb and skidded, but afterward said he did not know what happened. He acknowledged fault, the officer said, and asked him to "just forget the whole thing." Weber said from the witness stand that he was driving carefully, did not turn the wheel, and did not know what caused the car to skid.

Another police officer, who also noticed the odor of alcohol on his breath, testified, without objection, that Weber said he had had "a couple of drinks" at an "apartment with the lady who was in the car with him." He also said to the second officer he "guessed he skidded" and added that he was not sure whether or not he made a lefthand turn. Weber and Mrs. Eaton both denied the drinking.

Two pedestrians on Wisconsin Avenue testified that "the automobile apparently tried to pass the streetcar. It seemed to hit the curb while being abreast of the streetcar and then turn or skid in front of the streetcar." The two motormen said the automobile turned so suddenly to its left onto the car tracks that they could do nothing to prevent the streetcars from striking it. Another witness was Mrs. Mary Gibb who, according to Weber and Mrs. Eaton, was to have been their hostess for the evening. She testified that she was ill in bed on February 22, 1944, that she had not invited Weber and Mrs. Eaton to her home that evening, that she had not expected them to call, and that she did not know Mrs. Eaton.

Mrs. Eaton sought damages from Mrs. Weber for the injuries she suffered because of what she said was the "reckless and careless manner" in which her car was operated by her agent, Herbert E. Weber.¹ She joined Capital Transit Company as a defendant, charging it with negligent operation of its streetcars. The verdict was against Mrs. Weber only and she appeals, saying that the trial court erred in refusing to instruct the jury on contributory negligence, assumed risk and unavoidable accident. She complains also of an instruction absolving the appellee of contributory negligence.

Although the appellant requested instructions on assumed risk and contributory negligence, her argument before us is in the alternative, as though she regarded the two defenses as identical or so substantially similar that she would have been content had she been afforded the benefit of either.

Contributory negligence and assumed risk are so closely related as sometimes to be almost, if not entirely, indistinguishable. In cases which do not arise between master and servant, the two terms may well be considered synonymous in the sense that one who voluntarily places himself in a perilous position, when the potential danger is apparent, is not exercising ordinary care for his own safety.² But in another sense a difference between contributory negligence and assumed risk is easily discerned, since the former depends entirely upon conduct and the latter involves a mental state of willingness.³ This case affords an example of that distinction.

In his essay on "Voluntary Assumption of Risk,"⁴ Bohlen says, "The defense of contributory negligence is quite distinct. Negligence involves the idea of misconduct, a failure to measure up to the standard of that ideal personage the normal social man; assumption of risk does not." The same author, in an article on "Contributory Negligence,"⁵ distinguishes between that defense and the defense of assumed risk in this manner: "The plaintiff's inability to recover where the danger being known is voluntarily encountered is not based upon any thought that in so doing he has acted improperly, or has fallen away from the normal standard of proper behavior." He adds that, "Contributory negligence excludes the idea of deliberation."

Mr. Justice Holmes, speaking for the Supreme Court in Schlemmer...