The appellant, Esther L. Dean, was seriously injured about 1 a. m. on May 12, 1943, when the automobile shе was operating ran into the side of a taxicab owned by Century Motors, Inc., one of the appellees, which was being operated by Cyril T. Mitchell, the other appellee. The collision occurred at the intersection of Louisiana and New Jersey Avеnues, N. W., in the City of Washington.
Mrs. Dean sued the appellees in the District Court of the United States for the District of Columbia to recover damages. A trial-resulted in a verdict for her in the sum of $15,000. Thе judgment pursuant to the verdict was set aside because the presiding justice becamе convinced that he had committed prejudicial error in giving an instruction on the doctrine of last clear chance. Thereafter, a second trial was had, the appellant’s prayer for a last clear chance instruction was rejected, and thе jury found for the appellant in the sum of $1,500.
The case is before us on the appeal of the appellant-plaintiff, who asserts that the lower court erred in refusing to instruct оn last clear chance, and that the verdict was against the evidence becаuse of inadequacy in the amount of damages.
We find it clearly established by the evidenсe that the collision occurred about 1 o’clock on a rainy morning; that the appellant was proceeding eastwardly on Louisiana AvenUe, which is 87 feet wide, and that the appellee was proceeding southwardly on New Jersey Avenue, which is 62 feеt wide; that the collision occurred at a point about 27 feet from the west curb line оf New Jersey Avenue and 55 feet from the north curb li-ne of Louisiana Avenue. The physical condition of the *202 automobiles after the accident showed that appellant’s car was the striking vehicle. Traffic lights were not operating. The intersection was fairly well illuminаted by street lights. As to the speed of the cars and as to whether appellant’s lights were turned on, there is conflict in the evidence.
From the location of the point of imрact, we learn that appellant’s car had gone 27 feet into the intersectiоn and that the appellee’s cab had gone 55 feet into the intersection when thеy collided. The appellant says that she entered the intersection at “not more than 20 miles an hour.” She attributes a speed of from 35 to '40 miles an hour to the cab, which she sаw for the first time as she entered the intersection, although her companion testified thаt he saw it when it was 60 feet back from the intersection.
At 20 miles per hour a car travels 2S% feet per second and, at 40 miles, 58^ feet per. second. From the location of thе impact, and using Mrs. Dean’s version of the speed of the two vehicles as a basis of computation, it appears that both entered the intersection at about the sаme time, and that one second later the cars collided. We find no evidence tending to show that Mitchell, the cab driver, saw, or in the exercise of reasonable cаre and prudence should have seen, the automobile of the appellant bеfore he entered the intersection. Therefore; Mitchell did not see, and could nоt reasonably have been expected to see, the appellant’s car until one second before it struck his cab, obviously not enough time to avert the accident. Mrs. Dean put it grаphically when she said, “I didn’t have time to really do anything.” Mitchell had no more time than she had.
In these circumstances, we see no proper place for an instruction on last clear chance. The doctrine presupposes a perilous situatiоn created or existing through the negligence of both the plaintiff and the defendant, but assumes that there was a time after such negligence had occurred when the defendant сould, and the plaintiff could not, by the use of means available, avoid the accident. 1 It is not applicable if the emergency is so sudden that there is no time to avoid the сollision, for the defendant is not required to act instantaneously. 2
While there is, of course, great disparity between the amounts of the verdicts in the first and second trials, we are not authorized to disturb the action of the trial court in denying a motion for a new trial on the ground that the damages awarded by the jury were inadequate. 3
Affirmed.
Notes
Shea v. Pilette,
Milby v. Diggs,
Fairmount Glass Works v. Cub Fork Coal Co.,