Lead Opinion
This сase is before us a second time following our reversal of a directed verdict in favor of defendant-appellant, the District of Columbia, see Robinson v. District of Columbia,
Although the trial judge directed a verdict against plaintiff on the issue of contributory negligence (for failure to use the crosswalk), the judge submitted the case to the jury on the issues of primary negligence of the District’s employеe and last clear chance. The jury found in favor of plaintiff on both issues. On appeal the District, while not disputing primary negligence, argues that the judge should have directed a verdict in its favor on last clear chance because the evidence, in its view, established as a matter of law that plaintiffs negligence consisted not just of the initial failure to use the cross-walk, but also of her continuing failure — up to the point of the accident — to keep a proper lookout, in violation of District of Columbia traffic and pedestrian regulations.
If you find that the plaintiffs negligence continued to the moment of the accident and concurred with that of the defendant, then the plaintiff cannot recover under the last clear сhance doctrine and you must find for the defendant.
This principle of “concurrent negligence” finds no apparent reflection in the elements of the last clear chance doctrine as formulated in this court’s decisions. As set forth most recently in Robinson I, those elements are as follows:
(1) ... the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) ... the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) ... the defendant was aware, or by the exercise of reasonable care should have been aware, of the plаintiffs danger and of her oblivion to it or her inability to extricate herself from it; and (4) ... the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiffs inability to extricate herself from it, but failed to do so.
In another group of cases, the plaintiffs situation is not one of true helplessness, and he is still in a position to escape, but his negligence consists in failure to pay attention to his surroundings and discover his own peril.
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[In such a case, if] the defendant does not discover the plaintiffs situation, but merely might do so by proper vigilance, it is obvious that neither party can be said to have a “last clear” chance. The plaintiff is still in a position to escape, and his lack of attention continues up to the point of the accident, without the interval of superior opportunity which has been considered so important. The plаintiff may not reasonably demand of the defendant greater care for his own protection than that which he exercises himself. Accordingly, the nearly universal rule is that there can be no recovery.
Prosser & Keeton, The Law of Torts § 66, at 466-67 (5th ed. 1984).
We assume, for the sake of argument in this ease, that concurrent negligence is an exception to the doctrine of last clear chance in this jurisdiction. We do so despite the conceptual difficulty of harmonizing the exception with the disjunctive treatment by our decisions of two classes of plaintiffs: the plaintiff who is “oblivious to the danger” in which she finds herself; and the plaintiff who is “unable to extricate herself’ from that position of danger.
First, the District is mistaken in contending that, on the evidence presented, no trier of fact reasonably could have found plaintiff to have heeded her duty to keep a proper lookout. Viewing the evidence in the light most favorable to plaintiff, she began crossing the street after she looked to her left and saw that any traffic approaching from that direction had stopped for a red light. She also looked across the street and slightly to her left as she crossed, and saw the police van ascend a ramp leading into the street at the end of which was a flashing red light that would require the van to stop before continuing. She then crossed to the yellow dividing strip in the middle of the street, where she looked to the right to see if traffic was coming from that direction. As she looked to the right she was struсk by the police van, which had turned left into the street at a forty-five-degree angle. Plaintiffs admission that she was not “concerned about [the van] as [she] began to walk across the street ... [b]ecause of the [flashing] stop light there” seems to us to present a classic jury issue as to whether shе was negligent in not continuing to watch the van rather than (or in addition to) attending to the danger of approaching traffic from the right. See, e.g., Elam v. Ethical Prescription Pharmacy, Inc.,
Second, assuming that the District was entitled to its requested instruction on concurrent negligence, we are able to say with fair assurance on this record that the omission did not affect the jury’s verdict. See R. & G. Orthopedic Appliances & Pros-thetics, Inc. v. Curtin,
to keep a proper lookout and make reasonable observations аs to traffic and other conditions which confront that person, in order to protect all people using the roadways. What observations should be made and what should be done for one’s own safety are matters which the law doesn’t attempt to regulate in detail, except that it does place on a person the continuing duty to use ordinary care to avoid an accident.
The fact that one who has a duty to look testifies that he or she did look but didn’t see that which was plainly there to be seen, is of no legal significance. The requirement imposed by law is to lоok effectively. One who looks and doesn’t see that which is plainly there to be seen is as negligent as one who doesn’t look at all.
With respect to a pedestrian specifically, the judge again explained that,
before attempting to cross a street, it’s the pedestrian’s duty tо make reasonable observations to learn the traffic conditions confronting her, and to try to make a sensible decision whether it’s reasonably safe to attempt a crossing. What observations the pedestrian should make and what should be done for her own safety while crossing the street are matters which the law doesn’t attempt to regulate in detail, except that it, again, does place on the pedestrian the continuing duty to exercise ordinary care to avoid an accident.
Except for a short intervening instruction on respondeat superior, the charge on “continuing duty” came immediately after the court’s instructiоn on last clear chance.
Affirmed.
Notes
. See 18 DCMR § 2304.2 (1987); Roberts v. Capital Transit Co.,
. In Robinson I, wе clarified the fourth element of this formulation by holding that "it pertains to a defendant who, with means available to him, could have avoided injuring the plaintiff after he became aware of, or reasonably should have become aware of, the danger and the plaintiff’s inability to extricаte himself from it.”
. See, e.g., Heinecke v. Western Union Telegraph Co.,
. See also Restatement (Second) of Torts § 480, at 535 (1965) (“A plaintiff who, by exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, cаn recover if, but only if, the defendant (a) knows of the plaintiff’s situation ..."); 4 Harper, James and Gray, The Law of Torts § 22.13, at 369 (2d ed. 1986) ("Where both plaintiff and defendant are negligently unaware of the impending peril but plaintiff could have saved himself as long as defendant could have saved him, most American courts and the American Law Institute rule out last clear chance").
. We have said, for example, that ”[t]he requirement that plaintiff be unable to extricate himself from his position of danger is dispensed with when he is oblivious to such danger.” Jenkins,
. See, e.g., Connolly v. Steakley,
. In addition to oral instructions, the trial judge gave the jury a booklet of written instructions, but no one asserts that they included any material beyond the instructions read to the jury.
. As the judge had instructed the juty, plaintiff could not recover if "her negligence is a proximate cause of her injury."
Dissenting Opinion
dissenting:
I cannot agree that the failure to give the District’s requested instruction on last clear chance was harmless.
It has been rightly said that “[t]he application of the doctrine [of last clear chance] has been attended with much confusiоn.” Pros-ser & Keeton, The Law of Torts § 66 at 464 (5th ed. 1984). Its nuances are difficult even for lawyers and judges to grasp. I think this jury was entitled to have an instruction on last clear chance that accurately and completely set forth the applicable law and not be expected to make thе implicit and subtle link between clearly separated instructions that the majority assumes it did.
. I do agree with the majority that the District was not entitled to a directed verdict on the issue of last clear chance.
. On the merits, I simply observe, as the majority notes, that powerful authority exists in support of the District’s position, which I am not convinced is precluded by our prior decisions.