Kuzminsky v. Wagner Ex Rel. Fidelity & Guaranty Ins., 87 A.2d 411

Kuzminsky v. Wagner Ex Rel. Fidelity & Guaranty Ins.

87 A.2d 411

D.C.

1952

Check Treatment

HOOD, Associate Judge.

Plaintiff sued for damages resulting from a collision between his automobile and the defendant’s. Defendant filed a counterclaim for his damages. On trial by the court without a jury thеre was finding and judgment in defendant’s favor on both the claim and the counterclaim. On this аppeal plaintiff asks that the judgment be reversed on the ground that it was plainly wrong and without evidence to support it. 1

According to plaintiff’s testimony he was driving on Uрshur Street at a speed of 15 to 20 miles an hour and about 15 feet ahead of him wаs another car traveling at about the same speed; that defendant’s cаr was parked at the curb in approximately the middle of the block and other cars were parked in front and behind it; that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the car which plaintiff was following passed defendant’s car without mishap, but as plaintiff’s car came abreast of thе rear bumper of defendant’s car the left front door of defendant’s car wаs suddenly pushed open about halfway and plaintiff had no opportunity to avоid striking the open door with the right front of his car.

Defendant’s testimony was that he had crоssed the street from a library with several books under his arm, approached his parked car from the street side, opened the left front door, placed the books on the seat, got in the driver’s seat and was clos *412 ing the door when plaintiff's car struck it; that he looked for and saw no oncoming traffic as he crossed the street and looked, again when he reached his car and saw no. aрproaching cars in the block; that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he did not look again and never saw plаintiff’s car until the collision; and that a period of about IS seconds, elapsed from the time he reached his car until he was in the process-of closing the dоor.

In addition to the foregoing testimony there was received in evidence trаffic regulation No: 113, reading-as. follows: “No person shall open a door of a v.ehicle on the side where traffic..is approaching unless it can be dоne without .interfering.with moving traffic or pedestrians and with safety to himself or passengеrs.”

Plaintiff argues that, the evidence conclusively .established a violation by defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the quoted traffic regulation, and that under.the doctrine of Ross v. Hartman 2 dеfendant was negjigenf-as a matter of law. It- will be observed that the traffic regulatiоn in question is not an absolute prohibition against .opening a car door on thе traffic side. The door may be so opened when it can. be done without interfеrence with moving traffic or with pedestrians and with safety to those in the car. Thus what аmounts to a violation of the regulation depends on surrounding circumstances. аnd will generally be a question of fact. If defendant’s testimony be acceptеd, then his act of opening the door created no interference with traffic and endangered no one. Whether the door was permitted to‘ remain open fqr sufficient time to constitute a traffic hazard was a question of fact as wаs the question whether plaintiff by use of reasonable care should have obsеrved the open door in sufficient time .to avoid striking it.

In this- case as in most collision cases, negligence and contributory negligence are questions of fact. Tеstimony of the parties does not have to be accepted at its faсe value. Even though not directly contradicted, it is nearly always controverted by inconsistency of' the two versions.- Testimony as to time, speed and distance is usually approximate and often shaded in favor of the testifying party. The trier of thе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍facts, whether court or jury, must weigh the credibility of the witnesses, consider the surrounding circumstances, draw inferences, and reach a conclusion as to the prеponderance of the evidence. -On the record in this case, we cannot say that the conclusion of the trial court was either plainly wrong or without еvidence to support it. , Appellant has cited" a number of cases which, he claims support his argument, 3 but .they are ah distinguishable on the -facts.

Affirmed. ■

Notes

. See Code 1940, Supp. VII, § 11-772(c). See also Nolan v. Werth, 79 U.S.App.D.C. 33, 142 F.2d 9.

. 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080.

. Pearlman. v. Misner, Mun.Ct., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍36 N.Y. S.2d 646; Valanda v. Baum & Reissman, Inc., 3 Cir., 113 , F.2d 188; Keheley v. Uhl, 129 Conn. 30, 26 A.2d 357; Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723; Tarrant v. Pepsi Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Seiler v. Philadelphia Rapid Transit Co., 111 Pa.Super. 69, 169 A. 422. See also West v. House, 99 Cal.App.2d 643, 222 P.2d 269.