Zaiko v. District of Columbia
| Decision Date | 14 April 1970 |
| Docket Number | No. 22789.,22789. |
| Parties | Peter ZAIKO and Marie Zaiko v. DISTRICT OF COLUMBIA, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Ted D. Kuemmerling, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellant. Mr. Charles T. Duncan, Corporation Counsel, also entered an appearance for appellant.
Mr. Stanley Klavan, Rockville, Md., with whom Mr. Paul H. Mannes, Rockville, Md., was on the brief, for appellees.
Before ROBINSON, MacKINNON and ROBB, Circuit Judges.
The appellee Peter Zaiko was struck and run over by a truck owned by the District of Columbia and operated by one of its employees. He sued for personal injuries and his wife Marie Zaiko sued for loss of consortium. At trial before a jury the District denied all allegations of negligence and claimed that Mr. Zaiko's injuries resulted from his sole or contributory negligence. At the conclusion of the plaintiffs' evidence and again at the close of all the evidence the District moved for a directed verdict. The motions were denied. The jury returned a verdict in favor of Mr. Zaiko for $61,000.00, and in favor of Mrs. Zaiko for $10,000.00. The District's motion for judgment non obstante veredicto was denied. On this appeal the District contends that the verdict cannot stand because "the physical facts irrefutably establish" that Mr. Zaiko was negligent as a matter of law. We affirm.
The accident in which Mr. Zaiko was injured occurred in the early afternoon of September 30, 1966 on Riggs Road, N.E., in the City of Washington. Riggs Road runs east and west. The evidence disclosed that Mr. Zaiko was struck and injured by a District of Columbia Department of Highways and Traffic truck which was facing east and backing in the east-bound lane next to the south curb of Riggs Road. This lane was closed off for repairs and the truck was loaded with asphalt for use in the work. The weather at the time was dry and clear. There was no marked cross-walk in the vicinity of the accident. Mr. Zaiko's testimony at trial, and the theory of his case, was that he was standing on the south curb of Riggs Road, looking to his left, that is towards the west, and preparing to cross the street, when the truck backed up from the east and hit him.
Called as a witness by the District, the driver of the truck testified that before beginning the backing operation that ended when Mr. Zaiko was struck he looked into both his right and left sidemounted rear-view mirrors, satisfying himself that there were no pedestrians in the way, and then commenced to back up at a speed of approximately two or three miles an hour in the curb lane of Riggs Road. He said that after backing about twenty-five feet he "felt a bump", "sort of like you run over a piece of concrete" or "something like a fire hose we ran over". When he felt the bump he stopped, got out of the truck, and found Mr. Zaiko lying just forward of the right front wheel with his shoulders resting on the curb and the rest of his body in the roadway. He testified further that he had backed in a straight line two or three feet from the curb and that his truck never came in contact with the curb.
The District introduced photographs which showed the truck standing in the street with the right front wheel two feet from the curb and the right rear wheel three feet from the curb. In the photographs the front wheels were not in a turning position. According to the testimony of the driver and other witnesses called by the District these were the exact positions of the truck and its wheels immediately after Mr. Zaiko was struck.
The District argues strenuously that this photographic evidence demonstrates that it...
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