273 F. 342 | D.D.C. | 1921
Lead Opinion
Appeal from a judgment for the defendant, appellee here, upon a verdict directed by the court at the conclusion of plaintiff’s (appellant’s) case, in a suit for the recovery of damages for the death of plaintiff’s intestate through the alleged negligence of the defendant.
The accident occurred in the afternoon of September 24, 1915, on Wisconsin avenue, in the District of Columbia, at a point, according to the evidence, opposite Shoemaker lane. This lane, for the
On the day in question Mr. Bremmerman, a man 68 years of age, with hearing slightly, though not seriously, impaired, who was thoroughly familiar with that locality,' approached the tracks along Shoemaker lane from the west, carrying a bag of cantaloupes. There was a car going north on the easterly track, about two per cent, down grade at that point. Decedent proceeded diagonally across the south-bound track and across the 8 feet separating the two tracks, and was about to step upon the north-bound track, before the motorman of the car, approaching under power, made any attempt either to warn him or arrest the speed of the car. According to one witness, a former conductor who was in the front end of the approaching car:
“There was no signal sounded by the inotorman at all until he was within 10 feet of the man, when he hollered and tried to stop at the same time, and that was the first attempt he made to stop the ear; the motorman did not attempt to do anything until he was within 10 feet of the man [decedent] ; decedent did not look towards the ear at all. * * * The car ran about 45 or 50 feet north after striking the decedent. * * * It was on eight points all the way from the car barn out up until he [the inotorman] got within 10 feet of the man before be cut it off; that witness saw him cut it off when decedent ‘was within say a foot inside of the inside rail when he cut it off’; at the time he stepped over the west rail of the north-bound track, the car was just about 10 feet away; saw decedent from the time he came out of the lane, and he walked across the south-bound track without looking down towards the car, and he walked over the space between the two tracks without looking towards the car; and stepped over the west rail without looking; he never looked at the car at all. * * * He had his back towards the car when the car struck him.”
Another e}rewitness testified that the motorman sounded the whistle just as decedent was about to step in front of the approaching car. The car was running at a speed of 15 or 20 miles an hour.
The negligence of the decedent being admitted, the sole question for our consideration is whether the last clear chance doctrine is applicable to the facts of this case. In Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270, it was ruled that the negligence of the party injured will not preclude recovery by him, “if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff’s negligence.” This rule was reaffirmed in Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. 485.
In Capital Traction Co. v. Apple, 34 App. D. C. 559, this court ruled that the motorman on a street railway car has a right to assume that a pedestrian who is apparently conscious of the approach of the car will not attempt to cross the track immediately in front of it. The court further ruled that a railway company, having no ex-
“Where the negligence of the defendant, in failing to keep a proper lookout, intervenes between the negligence of the plaintiff and the accident, the negligence of the former may be regarded as the proximate cause of the injury, while the negligence of the. latter may be considered as the remote^ cause or condition. Necessarily, if it is found that the negligence of the plaintiff was merely the remote cause or condition, it cannot be said to have been contributory, since negligence, to be contributory, must be one of the proximate causes.”
“Last clear ebance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation.”
In the present case, had he seasonably sounded a warning and the
The judgment is reversed, with costs, and the case remanded for a new trial.
Reversed and remanded.
Dissenting Opinion
(dissenting). The negligence of the deceased is conceded. Should the jury find that the railway company was negligent in the operation of the car, it would make out, at most, a case of concurring negligence, upon which there could be no legal recovery.