*1 1339 developed, crystal becomes hereinbefore prevail, the public interest must
clear HOPKINS, Appellant, Calvin R. accordingly. draw the line A and we Sub- v. of the committee United States Senate was George P. BAKER et al. truthfinding process which engaged No. 75-1225. to execute. it is it had been commanded So the Chairman Subcommittee United States Court of Appeals, staff, its the members of under the District of Columbia Circuit. here, circumstances14 should be entitled to Argued 8, Jan. 1976. immunity. absolute 17, Decided March respectfully It is submitted15 that ease should be remanded to the District Rehearing Denied April directions to Court with dismiss com-
plaint. McSurelys claims
14. The of the here sound cited, previously noted in cases or indeed, now, especially hollow where some alleged source of claim stemmed from tor- later, years multiple they nine amendments tious or conduct or constitutional complain “publicity” they would bases, these federal defendants should be long sought, had so whenever wherever the tected. example, they opportunity arose. For as flout- aspects We need reach whatever other subpoenas, ed the Subcommittee’s their attor- McSurely pressed. claims have been ney Kunstler demanded that the Subcommit- remains, ultimate fact the Subcommittee and opened. tee’s executive session be Their co- itself, the Senate ratified actions of the Hirschkop counsel announced that there were Senators and members the staff of the people hearing pressing 100 outside the room Subcommittee. for find admittance their efforts were Any present other view would “a serious and suppressed police being so he said. —or judicial power.” delicate exercise Senators, Perceptive Subcommittee members Smith, 6, 48, 286 U.S. v. Government, of our a coordinate branch well 954 76 L.Ed. cf. Powell v. McCor rights parties respective (cf. aware mack, 89 Eastland, S.Ct. Ansara (1969). generally, (1971)) against L.Ed.2d 491 Consumers F.2d ruled the McSure- U., Ass’n, lys. unanimously approved U.S.App. Corr. The Senate Etc. v. Periodical resolution, supra, Subcommittee note 2. D.C. Certainly immunity the absolute to be ac- What herein been said-in no protect corded to the Senators available to derogation Judge Wilkey’s submitted in defending from burden of themselves the splendid Rather, statement the facts. one employees legislative body”. “officers may chronology hope developed Eastland, 82, 85, Dombrowski and the treatment now tendered be con- predicate sidered as an alternative for our dis- Without further detailed classification of dis- position of this case. immunity, qualified tinctions between absolute immunity, arising under circumstances to be *2 Graves, Washington, C., R.
Glenn D. with Povich, C., whom Bernard Washington, D. the brief appellant. was on for McKay, Washington, C., James C. D. with Medeiros, whom Matthew F. Washington, C.,D. was on the brief for appellee. BAZELON, TAMM, Before Judge, Chief Judge JUSTICE,* Circuit Judge District for the Eastern Dis trict of Texas.
Opinion by for Court filed District Judge JUSTICE.
Concurring opinion filed Judge Circuit TAMM.
JUSTICE, Judge: District September at approximately On P.M., appellant 10:00 Calvin R. Hopkins * Sitting by designation pursuant 292(d). to 28 U.S.C. upon yards upon the Penn Central railroad on
crossed tracks or the bridges or stop Benning 36th and depressed to a bus elevated or his structures carry- Road, Washington, Finding tracks, D. C. his path locomotives or cars train, tracks; stationary Hopkins operated blocked on or in tunnels or the parked peered underpasses designed or used solely between.two for *3 engine the at the head of the cars. When the accomodation of tracks moving, began Hopkins of cars was steam, diesel, line or electric railroad com- and run over ground to the the knocked pany operating in the District of Co- train. lumbia.” April Hopkins
On filed suit quotation. That concludes the the against Penn Central in United regulation This sets out applicable the District Court for the District Columbia standard of conduct which of itself nor- seeking damages for the loss of both his mally fixes the of care duty required by a arm, legs, finger. his left The person in the same situation as plain- was first June of case tried in but a tiff. jury was declared when the mistrial failed Ordinarily, unexplained violation of agree In a verdict. December of regulation negligence this is as a matter with jury a second trial concluded a of law. judgment favor of verdict and Penn Cen- However, in plaintiff this case the appeal tral. This followed. presented evidence which he claims ex- presented points with three We are justifies cuses the violation. There- First, appellant error. contends that fore, regulation the violation of this instructing jury trial court erred in negligence evidence of you which a appellant’s violation of District of Colum- may along consider with all of the other Regulation Police could be considered as bia presented on that question. negligence. Next, contributory evidence of negligence, Whether or not such any, if argues that trial appellant court sub- caused the injury separate question. erroneous instruction regarding mitted an this negligence Unlike proximately law Finally, of “alternative routes”. injury, caused the the fact of its existence complains trial appellant court’s limi- consequence. is of no testimony concerning prior tation way, if Stated another violation of the usage property. the railroad quoted explained section was not your satisfaction and created a hazard which I. regulation was intended avoid, bring which does in following on the fact about the instruction breach harm plaintiff regulation Columbia to the a District Police prevent, intended to the violation Regulation1 was submitted over is a legal cause of the harm.3 appellant’s objection:2 the incident At the time that under does Appellant forego- not contend that the occurred, following consideration reg- drawn, incorrectly instruction was ulation was in effect District of it inaccurately apprised quoting: Columbia—I am given statutory effect to be violation.4 Rather, person loiter, appellant argues “No shall unauthorized the Police walk, ride, otherwise trespass Regulation inopera- drive or in issue was rendered Art. of Columbia District Police 4. The trial court refused Penn Central’s Regulations. posed jury regarding negligence per instruction 2. There is uncontroverted evidence in the rec- Regulation ord that had been violated. Tr. 425-27. others, all ruling of this inapplicable by prior perceive no error in
tive or the trial appellant argues that Specifically, court’s instructions. hardly court. It can be said Arbaugh's court’s decision Smith the mere inclusion of the word “tres- Restaurant, in the Police pass” Regulation somehow essentially subverted an appropriate meas- (1973),precluded personal ure of conduct. Nor did the trial consideration of a statute which jury’s general court’s instruction8 on the rail- no more than define the sta allegedly duty suggest does a governing road’s standard property. on railroad Thus, tus of a less than reasonable care. under expansive reading even the most supra, Arbaugh's Restaurant, opinion we find that the common law classification of a held no error in the trial court’s instruction on injured upon the plaintiff land of another violation. govern longer duty of care could *4 In discarding the landowner. owed taxonomy of the English
outmoded
common
II.
law,
single
this court enumerated a
stan-
Another element of Penn Central’s
of reasonable care: “A landowner
dard
allegation
defense consisted of the
ap
reasonable
must act as a
man maintain-
contributorily negligent
pellant
pro
in a
ing
property
reasonably
his
safe condi-
ceeding through the
yards
rather
circumstances,
in view of all the
tion
includ-
adopting
than
a safer alternative route.
others,
injury
the likelihood of
Accordingly, the trial court instructed the
injury,
the burden
seriousness
and
jury as follows:
avoiding the risk.”5
person
Where a
who has a choice of
Arbaugh’s
routes,
Restaurant
this
two
one of which is known or
required
court was not
to decide whether
be known by
should
him to be dangerous,
the common law standard of care toward
other is safe and
dangerous,
less
intact,
preserved
should be
trespassers
or
voluntarily choses
dangerous
[sic]
along
route,
with the “invitee”
abandoned
person
less safe
such
is guilty of
Thus,
“licensee” classifications.
some con
law,
as a
negligence
matter of
and cannot
today
regarding
exists
fusion
the landown
from the
recover
defendant for any inju-
duty
trespasser.6
toward an adult
er’s
But
ries suffered as a result of chosing [sic]
assuming
even
that this court has
following
eliminat
dangerous
or less safe
trespasser
along
ed the
classification
with
route.
se,
applicability
hence the
of that doctrine is
brought
violation of the statute
presented by
appeal.
not
the harm which the ordinance was in
See,
prevent.
Hartman,
g.,
tended to
e.
Ross v.
Arbaugh’s
5. Smith v.
152 U.S.
217, 218,
U.S.App.D.C.
139 F.2d
App.D.C.
Management
Whetzel v. Jess Fisher
37 L.Ed.2d
U.S.App.D.C.
(1960).
It makes difference that local decision support submitted in safe route ous or less chosen the instruction falls far short of approving more language been a shortcut otherwise conve- complained by appellant.10 nient than safer route.9 Among many cited, other authorities none would seem to suggestion sanction a argues charge Appellant giv- to the negligence proven is ipso erroneously eliminated the standard of en facto pursue the failure to a safer course prudent ordinarily person, and instead Indeed, of travel.11 the weight authority jury that the choice of informed the a more quite the suggests opposite.12 negligence dangerous route constituted as a According appellant, of law. Although matter we do not approve the “alterna accepted law, tort and that generally which tive routes” below, instruction as given been submitted to the jury, grant should have are unable to appellant relief in 65A forth C.J.S. NEGLIGENCE premised upon as set it. Having object failed to 122, pp. 75-76: to the instruction time of its submis sion, appellant has waived any error therein.13 person A to whom two courses of conduct required to exercise open ordinary are choosing which
care in
course he will
pursue.
circumstances,
son would not
that is required.
which is
choice between courses of conduct is all
is safe or
However, ordinary care in making a
choice is
[*]
dangerous
If, under the same or
[*]
even
negligent
have so
an ordinarily
less
Jfs
rather than one which
dangerous.
in
chosen,
[*]
pursuing
prudent
[*]
one having
.
similar
course
%
per-
consisting only
pellant’s
to the single year
ny regarding prior public crossings of the
*5
cerns the trial court’s
“remoteness”,
Penn Central railroad
plaintiff
Appellant’s
evidence of
when he
the trial
of the
final
III.
prior
limitation
yard.
was
precise
judge
point
usage
and to the area
injured.
For reasons of
restricted
path used by
of error con
of
of
the land
testimo
Appel
ap
thereby hampered
lant was
in his effort to
While
existence
safe
or safer
presence
demonstrate that his
on this occa
course
be
determining
is to
considered in
sion was foreseeable to the railroad.
ordinary
exercised,
whether
care was
or-
dinary
does not require
care
that every
This court’s decisionin Arbaugh’s Restau-
way,
act be
the safest
and regard
done
rant
that
mandated
the degree of care re-
all
is to be
to
the other surrounding
had
quired of a landowner in a specific situation
guilty
circumstances. One is not
of negli- be
partly
evaluated
in terms of the foresee-
gence
pursuing
a course of conduct
ability
plaintiff’s presence.
of the
Believ-
ordinarily prudent person
that an
would ing that the finder of fact should focus on
the same
choose under
or similar circum- whether the landowner has exercised rea-
stances, although
open
there was
to him a
circumstances,
sonable care
all
under
(Emphasis supplied.)
safer course.
was stated that
We
to
authority
are cited
within this
Foreseeability
presence
the visitor’s
jurisdiction which either supports or disap-
part
determines in
inju-
likelihood of
proves the trial court’s instruction.
him,
ry to
the extent
of the interest
generally
Prosser,
Tr. 427-28.
12. W.
Torts
31 at 148-
ed.
Washington
10. Stewart v.
& Great Falls Elec.
Co.,
Ry.
U.S.App.D.C.
Neyland,
Fed.R.Civ.P.;
Price v.
13. Rule
U.S.App.D.C.
shifts
deny
ruling
opportunity
there-
rule should obtain. We
restrictive
and evaluate
relevant
hear
most of the
erred in un-
find that
trial court
fore
pertaining to a crucial element of
restricting
appellant’s proof
prior
duly
case. For
this reason we
plaintiff’s
single year
and we
usage to
that such action was
inconsist-
hold
indeed
an examination of the record below
ceed to
justice.
with substantial
ent
this action affected
to ascertain
rights
parties.16
substantial
REVERSED
REMANDED.
reflects
Although the record
TAMM,
Judge, concurring:
Circuit
received some evidence
1972,17
join
reluctantly
the record is also
in the
prior
court’s conclusion
usage
appellant’s
in which
under
with instances
standard of
v. Ar-
replete
Smith
supra
note
14. Smith
retrial of this case the
at 106.
cognizance
district court should take full
policy
clear
of the Federal Rules of Evidence
Golway,
Ry.
and Potomac
Co. v.
Baltimore
all relevant
evidence should be admitted
*6
143,
(1896):
App.D.C.
166
excluding
unless there is
sound reason for
it.
proper
to call the attention
[I]t
402;
1,129.75
see
Fed.R.Evid.
United States v.
obliga-
rights,
the relative
duties and
to
Land,
996,
Acres of
Cir.
respective parties
place
at a
com-
tions of the
monly
1973). The existence and use of other routes
crossing,
as a
be
if the evidence
used
yard
through
certainly
the railroad
would
seem
place.
If it had been
showed it to
such a
tendency
foreseeability
to have the
to make the
crossing
extent as that
to such an
used as
presence
plaintiff’s
yard
proba-
in the
more
reasonably
must
have known
the defendant
It
therefore
ble. would
meet the relevance test
user,
objecting thereto and
without
of such
see Fed.R.Evid.
and if it is to be
it,
any
taking steps
prevent
to
if indeed it had
provide
the district
excluded
court should
it,
right
prevent
was not
then the deceased
justifying
reason
that action.
articulated
proper
trespasser,
the
and it was
to tell
distinction between
of the established
Appellant testified
17.
that he had entered the
railroad, company
degree
of care which a
during
1960’s,
yard
Tr. at
railroad
trespass-
a mere
to exercise toward
is bound
appellant’s
testified that he
one of
witnesses
those who
tracks and towards
er
may
its
yard
“.
. between fif-
had traversed
.
at a com-
have occasion
cross them
ty and a hundred times” sometime after 1964.
purpose.
monly
to for that
used
resorted
Tr. 169-70.
Co.,
Duluth,
Ry.
Peyla
I.
also
M. &
Minn.
trians. COMMISSION et al. legal as to the correctness of the doubts No. 76-1703. decision, a practical but rather from court’s only generate that our action will concern Court Appeals, process leave duplicative legal yet the par District of Columbia Circuit. exactly position same as they ties in are Argued Nov. in now. March Decided today,
As a result of our decision this case completely be retried the district must No doubt evidence will be
court. sub-
stantially previous the same of this same suit with the marginal
trials testimony
addition others’ use of yard the area of the plain-
the railroad
tiff’s accident. cannot avoid the firm marginal that this
conviction difference will tip evidentiary plaintiff’s scales in
not change jury’s so as to
favor conclusion did not negligently act of this
the circumstances case. court, appellate as an usurp function
should trier say I cannot
fact and exclusion of was harmless error.
this evidence See Fed. question
R.Civ.P. extent to
which- railroad could foreseen yard use of track as a
plaintiff’s walk was not adequately established oth Bear, Smith v.
er evidence. See *7 (2d prof Cir. remote nor
fered neither cumulative. States, Jones F.2d 1967), denied,
1007-08 Cir. cert.
U.S.
doubt the jury’s verdict
determinative for the I cannot find that
defendant
bearing on their decision. See United
Heyward-Robinson
(2d
1970),
denied,
Cir.
cert.
91 S.Ct.
U.S. Corp., Larson v. General Motors Cir.), (2d 326 L.Ed. 445