Thе appellant, Mrs. Altha Marie Land-fair, sued the appellee, Capital Transit Company, in the District Court of the United States for the District of Columbia to recover damages sustained when the automobile she was driving was struck by a streetcar. She appeals from a judgment entered on а directed verdict in favor of the appellee, on the ground that the trial court erred in granting a binding instruction to the jury to find for the defendant (appellee).
The facts giving rise to the suit follow. In the early evening of August 19, 1944, appellant was driving an automobile south on the west side of Fourteenth Street, in the Northwest section of the District of Columbia, and attempted a “U” turn at a point north of Arkansas Avenue. This street is fifty feet wide, and traversing its cеnter are two sets of streetcar tracks, one for northbound and the other for southbound traffic. Each set of tracks is four feet and eight inches wide with a “dummy” space between of five feet and two inches. Appellant testified that she was traveling at a slow rate of speed, that she looked to the south for oncoming traffic and saw none, that she made the appropriate signal for her turn to following traffic, and then carefully attempted a “U” turn and her automobile was struck broadside by a streetcar as she crossed the northbound tracks. She gave explicit testimony that her view to the south in the direction of the oncoming streetcar was sufficiently good to allow her to see clearly as far as Shepherd Street, three blocks to the south of the point where the collision occurred. Appellant further testified that she looked to the south and saw no oncoming vehicles as late as that time when she was crossing the “du'mmy” space between the car tracks, not more thаn five feet from the point of impact.
The fact of the collision produces the inevitable conclusion that appellant must havе seen the oncoming streetcar if she actually looked in its direction. Northern Pacific R. Co. v. Freeman,
The only other source of evidence in this case was a deposition taken from onе Albert W. Gratke, plaintiff’s witness, who was a passenger on the streetcar which collided with appellant’s automobile. This deposition was introduced by plaintiff as part of her own case. Gratke was seated in a left front seat on the streetcar, immediately behind the motorman, and had an unobstructed view of the automobile orior to the collision. His testimony was that appellant began turning her car to make a “U” turn, but then swerved south in the direction of the streetcar, and then swerved again to her left, across the northbound streetcar tracks, when the streetcar was but 15 feet away from the automobile. He said the motorman applied the brakes on the streetcar lightly when the appellant’s automobile was first observed turning to cross in front of the streetcar, the automobile then being approximately one and a half car lengths away, and that the brakes were applied with force by the motorman when the automobile suddenly swerved the second time onto the tracks 15 feet in front of the streetcar.
Appellant’s counsel advanced the contention in support of the assignment of error that the case should have been submitted to the jury with appropriate instructions regarding the last clear chance doctrine. That contention we reject. Before any question as to the applicability of the last clear chance doctrine may properly be reached it is necessary to establish without its aid a duty on the part of the defendant commencing or continuing after the injured person’s peril arose, and a breаch of that duty related to the injury as a proximate cause. Under the rule of last clear chance
No inference can be drawn from Gratkе’s testimony that the motorman failed to exercise reasonable care when appellant was first observed turning her automobile, for the motorman then applied the brakes and continued at a cautious rate of speed after appellant swerved "from her cоurse the first time. Indeed, at this time the motorman had the right to assume that appellant was going to respect the preferential right of way of the streetcar. Capital Transit Company v. Smallwood, 82 U.S. App.D.C. 228,
It seems clear, according to Gratke’s testimony, that appellant could not have been perceived to be in a perilous position until she again swerved her automobile directly into the path of thе oncoming streetcar. The record is devoid of evidence, however, tending to establish negligence on the part of the motorman at or after that time. Appellant’s counsel, in oral argument, stressed the fact that the streetcar stopped four or five feet from the point of impact as an indication of negligence, but there is no supporting evidence that the streetcár could have been stopрed in less than that distance, which is only nineteen or twenty feet from the point at which appellant was observed turning in front of the streetcar, аccording to the only evidence in the record on this point. Until appellant established negligence on the part of the appеllee there was no occasion to apply the rule of last clear chance.
In Capital Transit Company v. Grimes,
The judgment is therefore affirmed.