Opinion
No. 278.
May 31, 1945.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Arthur L. Willcher, of Washington, D.C., for appellant.
Norman Sill, of Washington, D.C., for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
Appellant was defendant in an action to recover damages resulting from a collision of its motor truck with plaintiff's automobile at the intersection of 4th and H Streets, Southwest. Verdict and judgment were for plaintiff. Defendant in its appeal claims that the trial judge should have granted its motions for a directed verdict at the close of plaintiff's case and at the end of the trial.
Defendant's truck was proceeding south on 4th Street, a main highway, 50 feet wide between curbs. At H Street, cross traffic is controlled by stop signs. Plaintiff, driving west on H Street in a small coupe, was crossing 4th Street when the truck struck the coupe midway of its right side. Plaintiff testified that he was two-thirds across the intersection when this occurred. Officers of the Accident Prevention Squad of the Metropolitan Police, who arrived a few minutes after the incident, testified that by actual measurement the point of impact was 42 feet west of the east curb line of 4th Street, and 12 feet south of the north curb line of H Street. Marks on the street showed that the wheels of the truck had skidded 6 feet in a straight line immediately prior to the impact.
Plaintiff also testified that on approaching the intersection he came to a stop "even with" the official stop sign which is 25 feet east of the curb line of 4th Street. Here, he stated, he looked both north and south, could see a safe distance north on 4th Street, and saw no moving traffic. He then proceeded into the intersection and crossed without again looking for approaching traffic. His attention was drawn to pedestrians crossing H Street ahead of him and he did not observe the truck before the collision occurred. Cross-examined, he fixed 200 feet as the distance 4th Street was visible to the north from the point where he stopped and looked.
The traffic regulation governing the movement of vehicles at such intersections provides:
"At any point at which an official 'Stop' sign has been erected all vehicles shall come to a complete stop and shall yield to other vehicles within the intersection or approaching so closely thereto as to constitute an immediate hazard, but said driver having so yielded may proceed and other vehicles approaching the intersection shall yield to the vehicle so proceeding into or across said intersection." Traffic and Motor Vehicle Regulations for the District of Columbia, Sec. 28 (b).
Defendant's motions for a directed verdict were based on plaintiff's alleged contributory negligence. It now claims that in view of the evidence as a whole plaintiff's testimony that he stopped at the traffic sign is unworthy of credit; that if it be true that he did stop at that point, he was negligent in entering the intersection 25 feet beyond and in continuing across the favored street without further observation of approaching vehicles.
While plaintiff's testimony that he stopped at the sign was strongly contradicted, this presented an issue of fact for the jury to decide. In ruling on the motions the court was required to assume that the jury might believe plaintiff's version.
Boaze v. Windridge Handy, Inc., 70 App.D.C. 24, 102 F.2d 628.
So too, it was a question of fact for the jury to decide whether, from a car stopped at the stop sign, 4th Street was visible for such a distance north of the intersection that a reasonably prudent man, observing no moving traffic, would have proceeded into and across the intersection without again looking to either side for approaching traffic.
Where main streets are intersected by subordinate streets, where traffic crossings are regulated by stop signs, or where traffic approaching from one direction is given the right of way, decisions involving the issue of contributory negligence and the distinctive functions of court and jury are substantially uniform.
In Bland v. Hershey, 60 App.D.C. 226, 50 F.2d 991, 992, when his car arrived at an intersection plaintiff saw defendant's automobile approaching on his right, which under the applicable regulation would give it the right of way at the intersection if it presented an immediate hazard. Plaintiff proceeded to cross and the collision occurred when the front of his car was within 3 feet of the far curb line. It will be noted that at impact the relative positions of the cars in this and the present case were identical. At the conclusion of plaintiff's testimony the trial court, sitting without a jury, entered a finding that plaintiff was guilty of contributory negligence "as a matter of law and fact." In reversing, the court said:
"In our opinion the testimony of the plaintiff does not disclose contributory negligence either in law or fact. According to his statement he approached the street intersection carefully and looked to the right to see if any car was approaching from that direction. He saw defendant's car coming toward the intersection, but at such a distance as to give plaintiff sufficient time to cross in safety if the defendant exercised reasonable care in operating his car."
The court then quoted from Taxicab Co. v. Ottenritter, 151 Md. 525, 135 A. 587, where it was said that while it was incumbent upon plaintiff to give the right of way to vehicles approaching from the right "yet if the way for a safe distance was clear of traffic coming from that direction, he should not judicially be declared negligent * * *."
The latter case was followed by Jackson v. Leach, 160 Md. 139, 152 A. 813, 815, where it was said:
"* * * if at the time he looked on approaching, and within a short distance of the intersection, the way for a safe distance was clear of traffic coming from that direction, he should not judicially be declared negligent * * *."
In Nielsen v. Richman, 8 Cir., 114 F.2d 343, 348, certiorari denied 311 U.S. 705, 61 S.Ct. 172, 85 L.Ed. 458, plaintiff had entered an arterial highway after stopping at a stop sign, from which point she looked and did not see the approaching car. When her car was half-way across the center line of the highway it was struck by one coming from her left. She had made her observation of approaching traffic when she was 25 or 30 feet from the intersection. It was held that she was not guilty of contributory negligence as matter of law. The opinion presents an interesting review of decisions involving stops and observations made at points where stop signs were placed, although a point nearer the intersection would afford a better view of approaching traffic. It summarized the result thus:
"The sign itself is a command of the law to stop and it would seem that ordinarily a stop made at the sign would be a compliance with the statute. Certainly, it cannot be said that drivers are negligent as a matter of law if they do not stop at the particular point that will give them the best view."
With evidence from which the jury might find that plaintiff came to a stop as required by law, that he then looked and saw no approaching traffic, many decisions support the rule applied here, that it was for the jury to decide whether his failure to make further observations when entering and crossing the intersection was negligence contributing to his injury. Whether in this he failed to exercise the care required of a reasonably prudent driver was an ultimate fact depending upon the weight to be given plaintiff's testimony as to the extent of his observation of approaching traffic before starting from the stop sign, the relative speeds of the two automobiles, the distances each would travel, and the positions of each when the collision occurred.
Lefevre v. Roberts, 250 Mich. 675, 230 N.W. 917; Werner v. Yellow Cab Co., 177 Wis. 592, 188 N.W. 77; Pederson v. O'Rourke, 54 N.D. 428, 209 N.W. 798; Burdette v. Henson, 96 W. Va. 31, 122 S.E. 356, 37 A.L.R. 489 and note; Calhoon v. D.C. E. Mining Co., 202 Mo. App. 564, 209 S.W. 318.
Nor can it be said as a matter of law that defendant's truck was within plaintiff's range of vision when he stopped at the sign and that he did not exercise ordinary care in failing to discover it. Where an approaching automobile is obviously in plain sight the courts refuse to give credence to testimony that a person looked and did not see it. "However, in order to invoke this principle, it must appear as an uncontrovertible fact that the car was within his range of vision at the time he claimed to have looked."
Kunz v. Thorp Fire-Proof Door Co., 150 Minn. 362, 185 N.W. 376; Arvo v. Delta Hardware Co., 231 Mich. 488, 204 N.W. 134; Jacobs v. Richard Carvel Co., Sup., 156 N.Y.S. 766.
Schwartz v. Eitel, 7 Cir., 132 F.2d 760, 762.
The cases relied upon by appellant (Raaen v. Southern Hotel Supply Co., D.C.Mun.App., 31 A.2d 659; and Towles v. Arcade-Sunshine Co., Inc., D.C.Mun.App., 32 A.2d 870) did not involve contributory negligence as matter of law but were trials by the court sitting without a jury. The view of approaching vehicles was partly obstructed and the trial court found as a fact that contributory negligence was a proximate cause of the collision. These findings we affirmed as supported by substantial evidence. Had they been jury cases a directed verdict would obviously have been improper.
With the thought that the rules generally followed by courts throughout the country in construing right of way statutes and ordinances have contributed to the large number of serious accidents at intersections, the Ohio courts, reversing earlier decisions, have repudiated the "relative" doctrine and made the right of way absolute. Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A.L.R. 831; Sherburn v. Armstrong, Ohio App., 42 N.E.2d 716.
In Maryland, limiting earlier decisions to other situations, it is now held that the statute gives an absolute right of way to traffic on arterial highways. Greenfeld v. Hock, 177 Md. 116, 8 A.2d 888, 136 A.L.R. 1485.
A further assignment of error relates to a statement by plaintiff's counsel in his opening argument to the jury. He said: "Let us suppose that he did not stop at the stop sign, and that he continued to come across here (indicating) without stopping at all. Is that any justification for him to run into him?"
Defendant objected and now argues that as the court had refused plaintiff's instruction on the "last chance" rule the statement was unfair and prejudicial in that it suggested to the jury a theory of liability which they could not properly consider. When objection was made the court admonished counsel to "confine themselves to the evidence in the light of the instructions."
The question counsel propounded to the jury was suggestive, but it did not attempt to lay down a rule of law inconsistent with the court's instructions. Defendant's counsel had the opportunity to argue to the jury in his reply the law applicable to the case and doubtless did so. The instructions granted were included by the court in its charge to the jury, furnishing a definite statement of the issues of fact. It is extremely improbable that the quoted statement, if improper, was prejudicial. It does not furnish a sufficient ground for vacating the verdict.
Affirmed.