Opinion
No. 197.
July 25, 1944.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Samuel W. McCart, of Washington, D.C., for appellant.
Joseph D. Bulman, of Washington, D.C., for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
This is an appeal from a judgment for damages to a taxicab sustained in a collision with defendant's automobile in the intersection of Florida Avenue and Third Street, Northeast. Florida Avenue runs diagonally east to west, and Third Street runs north and south. Florida Avenue contains double street car tracks and north thereof, extending 65 feet easterly from the east curb line of Third Street, is a street car loading platform. An official police sign at the east end of the platform directs westbound traffic to the right or north side.
Traffic and Motor Vehicle Regulations for the District of Columbia: Section 23 (d). "No person shall drive any vehicle except street cars, ambulances, and vehicles of the Fire and Police Departments to the left of the following designated street car loading platforms: * * * Florida Avenue, Northeast, North side, east of 3rd Street."
Both automobiles proceeded westerly on Florida Avenue. Defendant passed the loading platform on the right as directed by the traffic sign, and on reaching the intersection swung to the left and stopped, then started forward to make a left turn into Third Street. He had gone about two-thirds across the north tracks when he saw plaintiff's taxicab coming to his left on the said tracks. In disobedience to the traffic sign plaintiff had driven left of the platform. Defendant applied his brakes, the taxicab swung left, but the collision occurred at about the center of the intersection.
Appellant's main contention is that the trial court was in error in not holding that the plaintiff was barred from recovery by reason of contributory negligence.
Generally negligence is a matter of fact to be determined by the trial court and if supported by substantial evidence cannot be reviewed on appeal. Yellow Cab Co. v. Sutton, D.C.Mun.App., 37 A.2d 655, 72 W.L.R. 455. And the same principle applies to contributory negligence. Herndon v. Higdon, D.C.Mun.App., 31 A.2d 854, 71 W.L.R. 141. "If fair minded men may honestly draw different conclusions as to the existence or non-existence of the negligence charged, the question is not one of law but of fact to be settled by the jury." Boaze v. Windridge Handy, Inc., 70 App.D.C. 24, 102 F.2d 628, 629.
However, a plaintiff's own testimony may be such as to establish contributory negligence on his part as a matter of law. Faucett v. Bergmann, 57 App.D.C. 290, 22 F.2d 718; Capital Transit Co. v. Holloway, D.C.Mun.App., 35 A.2d 649, 72 W.L.R. 212.
Leaving aside the testimony on behalf of defendant, plaintiff's testimony was that he knew the traffic sign directed him to the right of the loading platform, but because of other traffic he could not get to the right of the platform and so proceeded along the car tracks to the left of the platform, at a speed of 15 to 18 miles an hour; that when he neared Third Street he saw defendant's automobile making a left turn, and he touched his brakes and swung left but could not avoid the collision.
Plaintiff's own testimony, therefore, established negligence on his part. "Violation of an ordinance intended to promote safety is negligence." Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 15, decided November 22, 1943. Our sole question, therefore, is whether the negligence of the plaintiff, i.e., his violation of the ordinance, was a contributing cause of his injury. If it did not so contribute, violation of the ordinance was immaterial. Schear v. Ludwig, App.D.C., 143 F.2d 20, decided May 15, 1944.
Plaintiff, admitting his failure to obey the ordinance, argues that it was not the proximate cause of the injury. The question, however, is not so much one of proximate cause but rather of contributing cause. Assuming, as we do, that the defendant was negligent, and holding, as we must, that the plaintiff was negligent, the question is whether the two negligent acts concurred to produce the result, constituting mutually contributing acts of negligence. See Miller v. Union Pacific R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285.
Plaintiff deliberately, and without legal excuse or justification, disobeyed the law; he drove on a portion of the street where he had no right to be; he knew that those obeying the law and desiring to make a left turn would cross his path; he knew that others had the right to assume that no automobile would be on the tracks at that particular place. Herndon v. Higdon, supra. One deliberately violating the law and driving through a prohibited zone should be held to a stricter accountability than one whose negligence consists of mere failure to perform a duty.
Had plaintiff obeyed the traffic ordinance the collision would not have occurred. Furthermore, having driven into the prohibited zone, he could have avoided the collision by exercise of that degree of care required of him under the circumstances. Defendant, making a left turn from the position prescribed by law, had the right of way — if such term can be used under these circumstances — over plaintiff who was where he had no right to be. Plaintiff, having placed himself in a situation requiring the greatest caution on his part, should have driven in such a manner as to avoid collision with cars making a proper left-hand turn. This he failed to do.
Considering plaintiff's testimony alone, we think the conclusion inescapable that plaintiff as a matter of law was negligent and as a matter of law such negligence was a directly contributing cause of his injury.
Cf. Reeves v. Lapinta, 25 Cal.App.2d 680, 78 P.2d 465; Pennsylvania R. Co. v. Townsend, 130 Ohio St. 554, 200 N.E. 772, 104 A.L.R. 309; Price v. Gabel, 162 Wn. 275, 298 P. 444; Kilcoyne v. Trausch, 222 Wis. 528, 269 N.W. 276.
Reversed.