*2 TERRY, Before NEWMAN and Associ- PAIR, Judges, Judge. ate Senior TERRY, Judge: Associate personal injury This is a involving action pedestrian Appel- an automobile. lant, pedestrian below, plaintiff jury received favorable verdict at the trial, only first to see it aside set and new grounds trial ordered on the that the ver- dict was might appellee preju- and that have been diced a reference to insurance made appellant’s expert. medical A new trial held, at which the returned a appellee, verdict in favor defendant Appellant and driver of the automobile. appeal contends that the first trial judge abused Alternatively, argues new trial. refusing the second trial erred in instruct on the doctrine of last Finding clear chance. error either ruling, judgment. affirm injured attempting while to cross Connecticut Avenue in the middle Streets, his car N.W. a “clear lane traffic” H and I of the block between pass the truck without trials was able to bread proven the two Although the facts line, hav- crossing the center and he denied same, use- substantially the it will be line at crossed ever double the evidence for us to summarize ful with Mrs. any time car collided before order separately at each trial any see Felton. said he did not *3 appeal. issues on to decide the crossing he pedestrians the street before A. Trial No. truck; how- proceeded around bread Felton, at that Appellant, Eliza testified ever, just past the he was a few feet when just had May on she noon about truck, Mrs. Felton suddenly he saw bread way and was on her back left her bank she to walk realized that was about and Ave- she crossed Connecticut work when He Mrs. Felton his car. testified that into H middle of between in the the block nue cross- paying attention as she was was not Streets, congest- N.W. Traffic was I and street, into the ing the and she walked ed, parked in cars were the curb lanes and approx- car “at a in contact side of his sides of the street. on both to a of the imately six inches foot in front way parked cars on made her between two right-hand edge my door.” Mr. front Avenue, of Connecticut and the west side recently that he waxed Wagner added in front of bread a wide-bodied walked car, only and that after the accident the blocking double-parked was and truck that scraping any kind the car was a mark of in the southbound lane. traffic he said precise point where of wax at made, namely, the wind- safely contact was where Mrs. Felton testified that she right hinge. meets the front door truck, shield the double passed the bread reached line, paused, ways yellow looked both be- driver, Blanks, the tes- Louis bread truck and three proceeding, fore took two to in front he saw Mrs. Felton walk tified that traffic lane. steps into northbound “reading or a pamphlet, truck of his Suddenly, appellee Wagner’s she saw car her “all the He continued to watch book.” pulled approach from left as it around then, passed the way, and when she the bread truck. car had crossed over reading, kept and I heard her scream she yellow headed the double line and was hit Mr. Blanks said and saw her car.” froze, knowing straight her. She not at of the struck Mrs. portion car that way go, struck and was door, “[cjlose to the wind- Felton was right front Mrs. Felton said car’s fender. Wagner's said Mr. He also shield.” Wagner’s there room for Mr. was yellow not cross over the double car did pass safely either side of her.1 line. traffic on Mr. testified that the Rouse, driver, driving a cab Ronald I Avenue between H and Connecticut At north on Connecticut Avenue. his cab extremely day. congested that Streets was injured, Mrs. Felton how- moment there He first noticed bread truck when ever, moving because the cab was to five the truck separating congestion. three cars testified that Rouse the traffic said, me, angle,” “From he she from his car. “to noticed because he not see in front she was paying “I could what was attention to where wasn’t watched, south- off proceeding going.” truck.” While As he walked bread “[s]he looking opposite di- bound, Mr. was in first ... in the the curb someone,2 rection, waving moving faster like she was gear, and second into the side of directly He had she walked or fifteen miles an hour. than ten answered, "No, just walk- she continued physician and an also testified Rouse A economist said, And, damages. just paying ing. issue of like I wasn’t she That’s all is to it." attention. “look asked whether saw Mrs. Felton 2. When traffic,” right oncoming Mr. her left or Wagner’s] ap- car.” To Mr. Rouse it B. [Mr. Trial No. 2 peared that she collided the “rear with At trial, the second Mrs. Felton’s testi- fender, the front or the side of his door.” mony essentially the same as it had opined Mr. Rouse could been at the first In particular, trial. going not have been more than two to stated: hour, three miles because “[t]here got lines, When I I double traffic in very front of him and it was looked southward towards the White Moreover, congested in that area.” House and there coming traffic [Wagner’s] “did Rouse not see car cross left, ... then my I looked to towards any over lane.”3 I I Street ... didn’t anything_ see returned a verdict favor of So, stepped couple out a steps, later, Mrs. Felton. Four and a half months out, I stepped out the corner of [of] however, judge granted Wag- the trial *4 my eye glimpsed I this small car or ob- ground ner’s motion for a on new trial the ject coming from around that truck. jury’s that the contrary verdict was I just And then I froze. didn’t know weight order, clear of the In evidence.4 knew, what to do. The next I thing judge the said: hit. of eyewitnesses the disinterested [B]oth Manley Morris testified behalf of Mrs. who testified at the trial [Blanks eyewitness. Felton as an He said he was corroborated the defendant’s tes Rouse] standing three doors down from the bank timony concerning sequence the of at the corner of Connecticut Avenue and H leading up
events to the accident. This Street when Mrs. Felton was struck. Man- testimony was to the effect the said ley recognized appellant he plaintiff, as she crossing Connecticut Avenue in previous- the street because he block, the had middle of the crossed walked into the ly “seen her neighbor’s come to a side of the house defendant's vehicle an instant walking that lived downstairs.” He after from in saw as she idling front of an truck, stepped past the bread truck. In the bread “and then all opinion Court’s the weight Wagner’s of sudden” coupled this evidence he saw Mr. with the [a] pull up. prejudice Wagner appeared may which the defendant to be a little have said, gratui angry, suffered as result of Dr. Azer’s “because traffic wasn’t tous testifying comment for concerning insurers [5] requires policy hit moving.” by the car. Then According suddenly Mrs. Felton was to Mr. Manley, granting of a prevent angle her, new trial the car at an when it hit miscarriage justice.[6] sticking its rear end “was out into Mr. judge following also called his own medical ex- 6.The added the footnote: pert to refute Mrs. Felton’s dam- The Court has been informed its clerk ages. propped that the defendant his feet on the sitting during table at which he was a bench An alternative motion n.o.v. was contemptuous conference. This conduct was denied. perhaps jury’s a factor in the verdict. Azer, "gratuitous 5. The comment" Dr. Mrs. argues judge now that the trial erred expert, Felton’s medical made answer to considering Wagner’s misconduct as a question asked counsel for Mr. basis a new trial. It clear from usually about whether the doctor testified on order, however, judge’s did that this incident plaintiffs behalf of responded, or defendants. Dr. Azer play any grant role in his decision to a new appear patients, they “I for our trial; rather, judge simply took occasion to just can be either.... What we do not do is Wagner’s comment on Mr. or, courtroom demean- simple companies.” evaluations for insurance hoping no doubt that he so would not be objected counsel and moved for a mis- ill-mannered at a future trial. trial, which was denied. The trial court offered instruction, give Wagner's a curative but counsel declined the offer.
295 1111; endine, Rich, supra, other street” over the double side of the 535; Taylor 410 supra, A.2d at yellow Wash- line. Co., U.S.App.D.C. 133 ington Terminal behalf, on his testified own 145, 148, denied, cert. 409 F.2d testimony from the repeating most of his 24 L.Ed.2d 85 U.S. 90 S.Ct. he pulled past first that as trial. He stated case, (1969). when, in this But into bread “walked determining grants court motion after impacting at my approxi- the side verdict is mate the front where meets the wind- closely we will scrutinize again having He shield....” denied record to the trial did not ensure that line, except pos- crossed the double simply prefer of the facts over one version sibly impact after the “because of the reac- another, Oxendine, supra, 506 see A.2d at away tion to from impacted turn where she 1111; Rich, 535-536, 410 A.2d at supra, my car.” He also said that he was right protect litigant’s and “to driving gear in first because of the traffic Industries, Inc., Schenley trial.” Lind v. congestion and could not have been travel- (3d Cir.) (en banc), F.2d cert. ten or more than fifteen miles hour. denied, U.S. 81 S.Ct. L.Ed.2d Revercomb, presided who over the (1960). trial, second declined to instruct the In motion for judg contrast to a chance, despite doctrine of last clear verdict, notwithstanding ment Judge Kennedy the fact done so in *5 requires the to consider the court evidence Judge the first trial. Revercomb concluded light the most favorable non-mov that this was not a last clear chance case ing party, trial requires motion for new a because no evidence had been to evidence, consideration fa of all the both Wagner show knew that or should Rich, supra, vorable and 410 unfavorable. peril. have known of Mrs. Felton’s Judge Kennedy presum A.2d at 534-535. case jury, went to the returned ably recognized distinction when he this Wagner. verdict in favor of Mr. From the granted simultaneously while new trial verdict, judgment on that denying Mr. Wagner’s judgment motion brings appeal. this least, Arguably, jury the n.o.v. to find in some evidence on which Mrs. II favor, justifying Felton’s the denial of thus Judge Kennedy, contends that judgment the motion for n.o.v.7 the judge, first trial abused his discretion Looking at all the we can by ordering ground the a new trial on that Kennedy say Judge abused his that the clear weight verdict was the of granting discretion in a new trial. As the disagree. the evidence. We noted, disinterested witness the two ruling on a motion new trial is A important aspects es the most corroborated committed to the sound discretion the of first, Wagner’s testimony: of Mr. that Mrs. court, scope trial and our of is limit review car, of his Felton walked into the side and ed to whether there has been an of second, abuse that car did not cross that Furthermore, discretion. Oxendine v. Merrell Dow the double line. Pharmaceuticals, Inc., 1100, 506 A.2d no evidence (D.C.1986); 1110 Rich v. All speeding driving recklessly. District Co or of lumbia, 528, (D.C.1979). witnesses, Felton, 535 including 410 A.2d Mrs. testified motion, congested; Wag has denied very When the trial court the that the traffic was thereby verdict, sustaining jury’s the our ner said in first or second that car was moving no scope gear, and faster very of review is narrow indeed. that he was Ox- opinion appeal, express properly n.o.v. was denied and on the Whether we course, is, way. either in the of not before us on issue first 296 E.g., Prescription Elam v. Ethical hour, ten Phar per
than to fifteen miles Inc., moving (D.C. macy, cab driver stated that 2 A.2d 1289 n. at a mere two to three Clancy, 1980); miles hour. Brown A.2d Finally, negli- that Mrs. Felton was herself (D.C.1945).9 But under the last clear gent supported by testimony not only doctrine, plaintiff as chance such Mrs. of Mr. and the two disinterested recover, permitted despite Felton is her eyewitnesses, but also testimo- own contributory negligence, own there is mid-block, ny she that crossed the street at (1) plaintiff that in a despite the existence of a cross walk at danger position of negli caused say, nearest comer. Thus we cannot plaintiff defendant; gence (2) of both Oxendine, supra, did in that the evidence plaintiff was oblivious to the dan fairly evenly “on both sides ... ger, or unable extricate herself from the weighted,” are 506 A.2d at and we danger; (3) position the defendant persuaded Judge Kennedy abused aware, or the exercise of reason his broad tri- new aware, able care should have al.8 plaintiff’s danger her oblivion to it it; her inability to extricate herself from Ill (4) defendant, means with ar- Thus we turn to Mrs. Felton’s other him, injur available could have avoided gument Revercomb erred in the plaintiff becoming after aware of second trial when he refused to instruct danger plaintiff’s inability and the jury on the doctrine of last clear chance. it, extricate herself from but failed to do given the first trial was a last Hawkins, so. Byrd v. instruction, clear chance and because (D.C.1979); Mathews v. Lindsay, U.S. approxi- evidence in the second trial was App.D.C. (1960). 281 F.2d first, mately the same as that right every injured party “It is not maintains that should have been negligent contributorily who has been similarly course, instructed. Of whether seek the aid of the doctrine last clear *6 properly given in instruction was chance_” Phillips Sys Transit D.C. appeal, first trial is not at issue on this Inc., tem, 740, (D.C.1964). A.2d 198 742 express opinion question. we no on that plaintiff present on The burden is to hold, however, We Revercomb’s on all four before a last elements give refusal to a last clear chance instruc- given; fur may clear chance instruction be light appropriate tion in evi- thermore, applicable the doctrine is if “not dence at the second trial. is so emergency sudden that there is no doctrine of last The clear chance collision, time to avoid the for the defend importance is plaintiff of utmost in a to instantaneously.” act required ant is not to case, one, such as in is this which there Id. contributory negli substantial evidence
gence
part.
Looking
appellant’s testimony
In
in
the District of Co
her,
light
contributory negligence
lumbia
an
to
we con
abso
most favorable
recovery
negligence
proved
lute
in a
the first
only
bar
action.
clude that she
two
Any
Judge Kennedy’s
doubts about
decision
a substan-
the defendant is insured creates
dispelled by
misuse");
be
should
fact that it
based
tial likelihood of
Cleary.
McCormick
E.
only
not
trary
on his
(3d
1984).
view
the verdict
con-
201
ed.
§
on Evidence
but also
possibility
Wagner might
have been
Columbia have
courts of
District of
prejudiced by
compa-
the reference to insurance
yet adopted
comparative
the doctrine
expert.
nies made Mrs.
medical
See
Felton’s
negligence.
System,
See D.C. Transit
Inc. v.
R.R.,
Eichel v. New York Central
375 U.S.
Garman,
244, 246,
U.S.App.D.C.
301 F.2d
("It
(1963)
84 S.Ct.
supra,
(last
A.2d at 742
clear chance
the most im-
ested witnesses corroborated
“no
applicable
not
there was
doctrine
when
aspects
Wagner’s testimony:
of
portant
testimony to
establish
competent
first,
the
Mrs. Felton walked into
side
that
perilous
of
situa-
was aware
the
bus driver
Wagner’s
car;
second,
his
and
that Mr.
of
that,
he
aware
appellant
tion of
had
cross
line.”
car did not
the double
could
thereof,
time in which he
there was
however,
many of
majority,
The
overlooks
collision”).
the
have avoided
discrepancies
testimony:
in
the
the
in,
testimony
speed,
was
his
where on
lane
Finally, because there was
occurred,
point
impact
what
great
a
car the
of
Wagner’s
car at
the
placing
hit, what she
happened
so that
when Felton was
enough
from Mrs. Felton
distance
looking
her,
doing, and
at
striking
the was
where she was
have avoided
could
It
of the
the time
accident.
element was not established.
fourth
dence,
believed,
finding
support a
of
saying
was in
would
not
We are
part.
only
negligence
negligent,
evi-
on his
but
Mrs. Felton’s
fact
called,
testimony, Fel-
Wagner’s
In contrast to
Blanks had demanded
$300
a
wit-
testimony.
attorney
ton
Avenue be- ness fee for
testified that Connecticut
stipulated
paid,
H
Streets consisted of four
further
tween
and
that unless
Blanks
parking and
She
attorney
lanes—two
two traffic.
threatened to contact Felton’s
and
crossing
request
Con-
deposition.
testified also
she was
a second
Avenue,
east, by negotiat-
west to
necticut
driver,
A
eyewitness,
second
a cab
was
ing
parked
the
between
cars and in front of
the northbound lane
the time of
at
the
stopped bread
and crossed the dou-
accident. He also testified he observed
dividing
ble lines
from south-
northbound
walking
Felton
across Connecticut Avenue.
line, she
bound traffic. At
the center
Blanks,
Unlike
who testified he saw Felton
stopped,
ways,
proceeded
both
looked
and
reading, Rouse testified he saw Felton
caught
only to
forward
freeze when
waving to someone behind her so that she
eye
from
corner of her
a car. The
the
facing the
was
wasn’t
direction she
walk-
the
from behind the truck in
come
attention,
paying
and not
and walked
crossing
and
the dou-
southbound lane
directly
Wagner,
into
side
the
of
car.
ble
lane. Felton
lines into the northbound
testified,
going
Rouse
ten
to fif-
vehicle,
into
by
was struck
flew
hour,
two
teen miles
but
to three miles
air, and
the front of his car
fell onto
per hour and
in the
southbound lane.
and,
ground.
finally, onto the
From
Evidence
this trial
therefore
con-
estimation, Felton,
concededly inexpe-
flicting and interested.
It is
of
the office
distances,
estimating
rienced at
claimed
judge,
jury,
judgments
to make
for
that there was insufficient room
a car
See,
concerning
e.g., Acqui
evidence.
pass
going
into
bread truck without
Isaac,
(D.C.1975).
stated: fairly assumed that may
We think be average juror negli- in an automobile
gence suspects case that the defendant liability and that the case
has insurance com- being defended the insurance rate, any feel the time
pany. At mere of in-
has come when the mention ought not negligence in a case
surance
ipso require facto a mistrial. Ratcliff, v. Parks A.2d
See
(D.C.1968).
An innocuous allusion insurance which
may have influenced the is therefore a speculative
ground too to warrant a new Buckley,
trial. See Baber v. (D.C.1974). Furthermore, a motion appropriate remedy preju-
mistrial—the already properly
dicial remarks —had in this
denied case and curative instructions counsel. im-
declined defense Because
proper factors relied on and the rea- conclusion, given support
sons do
would find an and re- abuse
verse.
CLOVERLEAF STANDARDBRED ASSOCIATION,
OWNERS
INC., Appellant,
v. WASHINGTON, BANK
NATIONAL OF al., Appellees.
et 85-1355.
No. Appeals.
District Columbia Court of
Argued June July
Decided (D.C.1974). Buckley, A.2d a new trial. See Baber