*1 PER CURIAM. corpora CORP.,
THEODORE KAGEN together exhibits Oral tion, al., et Petitioners base- convinced the Commission cases petitioners’ metal watch bezels of COMMISSION, metals, precious FEDERAL TRADE could mistaken for be Respondent. ab- appearance, in the because contrary. No. 15541. of clear disclosure sence supports find- Substantial evidence Appeals United States Court ing. petition- ordered The Commission of Columbia District Circuit. selling “Offering or for sale ers cease Argued Sept. composed or in whole watch cases 29, 1960. Sept. Decided treated which has been of base metal metal, precious simulate disclosing metal the true cases such compоsition eases treated of such us parts.” advised counsel Commission ques- response argument, in oral may bench, order that the tion from the require de- interpreted more be than that treated disclosure tailed composed parts of base cases interpreted, order is metal. As so Affirmed. Appellant TODD,
Lee W. аl., Appellees. Albert JACKSON et No. 15161. Appeals States Court of
United of Columbia District Circuit. Edelson, Argued D. D. Alvin March Mr. Noble, Mr. Ben C., whom Paul Decided Oct. C., brief, was on the D. petitioners. Brown, Attorney, Miles J. Federal Commission, with whom Mr. Alan
Trade Counsel, Hobbes, Asst. General Fed- B. Commission, was on the Trade eral Elkins, respondent. Mr. E. K. Attor- Commission, Trade ney, Federаl also respondent. appearance for
entered Edgerton, Danaher, Before Bas- Judges.
tían, *2 Judge.
WASHINGTON, Circuit
guest
Plaintiff-appellant
passen-
awas
ger
(licensed
in an
a taxi-
automobile
cab)
parked
which ran into
rear of a
Washington.
city
truck trailer in the
seriously injured.
Plaintiff was
He in-
damages
stituted this suit for
taxicab,
owner,
and
driver of the
the driver and the
the truck
owner of
trailer. At
conclusion of
plaintiff’s evidence, the District Court
directed a verdict in favor of all
de-
grounds that,
fendants
on the evi-
on the
adduced,
preclud-
dence
recovering
ed
of law
from
as a matter
injury and
since he assumed the risk of
joint
was a
with the driver
venturer
appeal
the taxicab. This
We
followed.
undis-
affirm for
reason that on the
puted
facts here the
was as
negligence
guilty
which
matter of law
injury.
producing
contributed
his
Normally,
course, questions
negli
contributory
gence
court.
for
and not the
too,
Normally,
“if
for a dif
there is room
opinion,
for
ference of
wise course is
go
judge
case
the trial
to allow the
jury.
If a verdiсt is deemed
evidence,
contrary
court
to be
judgment may
non obstante
be entered
veredicto. Action
this court
judgment
appeal
such a
event of
expense
would
the trouble
not entail
of a
v. Baltimore &
new trial.”
U.S.App.D.C.
1953, 92
Ohio R.
page
page
F.2d
procedure
671. This
A.L.R.2d
present
But
not followed
case.
here the trial
think that on
facts
we
err when it refused to
court did not
Shorter, Jr., Washington,
Mr. John A.
go
jury. Jackson,
case to
allow the
appellant.
C., for
D.
negli
cab,
driver of the
Schwartz, Washington,
M.
Mr. Alfred
gent. The conduct of the other defend
Bowling.
C.,
appellees Jackson and
D.
perhaps
is
may, plaintiff’s
more debatable.
ants
Be that
contributory
as it
obvious
Washing-
Stewart, Jr.,
E.
William
recovery
him
bars
C.,
ton,
with whom Messrs. Richard
D.
against any of the defendants.
Kieffer,
Galiher
Thomas A.
W.
Jackson,
and defendant
Washington,
C.,
D.
were on the
driver,
together
part-time cab
embarked
appellees Broadus and Holland.
.for
eight
evening
o’clock one
about
on a
Fahy
Washing-
to taverns in
round of visits
Before Wilbur
Miller,
K.
nearby Maryland
Judges.
ton
Jackson’s
long
may
testified,
what
have been a half hour
as he
cab.
rented
they
buy
money
er
before
entered the taxi for the re
used
of the
supplied all
during
voyage
pur-
turn
gasoline
expedition
and to
whiskey
which the collision with the
trail
which
the beer
chase
*3
evening. Thеy
occurred;
they
during
left
er
that at the time
start
the
consumed
high”
“pretty
11:30
ed back Jackson was still
at about
tavern visited
last
the
intending
he,
feeling
plaintiff,
pretty
got
to
and that
was
cab
p.
into the
andm.
good
feeling
according
plaintiff’s
pain.
home,
tes-
himself and was
no
to
return
They
timony.1
lost
about Whether
not Jackson was “drunk”
and
became
city
they
return,
when
the
reentered the
to
a street
in
cab
m. collided on
12:20 a.
plaintiff admittedly
Road)
Washington (Bladensburg
the
that
understood
of
by
he
Jackson was affected
the alcohol
truck trailer.
of a
the rear
had consumed
not
He
and was
sober.3
plainly and with
evidence shows
The
got
voluntarily
neverthеless
into the cab.
plaintiff and Jack
out
that
contradiction
(unaccompanied
Eaton,
U.S.App.
In
Weber
82
consumed
had both
son
pointed
any food)
of
we
out
by
amount
D.C.
F.2d
a substantial
during
voluntarily
beverages
accompanies
hours
who
the four
that
one
alcoholic
plaintiff
knowledge
in his
preceding
driver
cаr
that
the
the collision.2
drinking
of
driver has
the
felt the effects
assumes
testified that he
himself
through
neg-
injury
liquor;
the last
risk of
the
he noticed at
driver’s
the
that
brought
ligence
“pretty
was
about
the
he
Jackson
alcohol
tavern visited that
open
ques-
high”;
and he
left
wasn’t sober
has consumed.4 We
that Jackson
the
drunk;
he
this
after
noticed
tion whether
would also
contribu-
that
it
be
wasn’t
drinking
negligence.
tory
stayed
In
they
beer
the
at the tavern
circumstances
containing
Jackson,
the stand
a wit-
or four
of beer
who took
as
bottles
3.2%
they
by weight
(4%
volume),
testified that
alcohol
for the
ness
drinking
tavern on the
of three or four
to
another
ounces of
intended
visit
Washington.
proоf
city
spirits,
of
of
distilled
caused deteri-
outskirts
performance
driving
in the
oration
of ex-
testimony
that he
was
pert
per
drivers of between
and 30
pint whiskey,
purchased
and
of
that he
at alcohol
in
cent
concentrations
the blood
drinks from the
each had two
Jackson
per cent,
comparison
in
of
to .06
.04
bottlе, and
visited
that
taverns
group having
alcohol,
a control
no
and
during
evening
each
and Jackson
he
impairment
driving ability begins
about
bottles of beer.
Jack-
had
seven
there is an alcohol
when
concentration
he, Jackson,
son’s
was
per
.04
the blood
.035 to
cent.
pint
gin,
bought a half
which was en-
tirely
plaintiff;
by him and
consumеd
analysis of Jackson’s
made
3. An
urine was
purchased
pints
later he also
two
police headquarters
about
hour
provided
whiskey,
drinks
one of which
and 40
though
after
Al-
minutes
collision.
acquaintances and
drink or
for four
one
report
identified,
was
plaintiff;
each for himself
“shot”
apparently
not
was
introduced
evi-
plaintiff
had
that he
each
three drinks
any case,
In
it is not
dence.
included
pint;
and that in addition
other
joint appendix before
Jackson
us.
purchased
cans of
which he
he
two
beer
testified, however, that he was told that
plaintiff
driving. His
drank while
urinalysis
that he
showed
was under
amount of beer
estimate of the
consumed
influence of alcohol.
taverns
than
at the
was less
that testified
Weber,
by plaintiff.
conflicting
In
there
Neither
nor
was
evidence
testify
to whether or
Weber and
Jackson
asked
as to wheth-
Mrs.
pint
whiskey
prior
cocktails
had finished the
Eaton
at all
er
(the only
according
Quisenberry
one
the accident.
In
U.S.App.D.C.
Her
pint
Jackson)
aсcording
man,
the second
jury question
pre
250, a
also
before the accident occurred. Controlled
F.2d
practical
reported
Bjer-
conflicting
road
since there was
tests as
sented
evi
Goldberg,
Inges-
as to
Effect of Alcohol
dence
whether
driver had driv
ver
negligently
Driving
Quarterly
Ability,
and whether
was in
tion
en
she
1, 3,
under
the influеnce of
alcohol
Journal
Studies
Alcohol
fact
(1950),
showed that
three
had drunk.
she
here,
purposes
oath
only,
for
ing
stated
where
this case
there be-
only purchased
alco
contrary,
all
he
evidence to
by Jackson,
operated
holic drinks consumed
Jackson
his cab in the District
money
buy
himself,
awy
them
“while undеr the influence of
intox-
icating
quantity of alcohol
liquor” (emphasis
but also
supplied)
knew
consumed,
volun
40-609(b)
which Jackson had
(Supp.
violation of D.C.Code§
tarily
VIII,
making
1960),
after he knew
rode with Jackson
it a crime to do so.5
in
guilty
he
under the
observed
Jackson was thus
intoxicating liquor, plaintiff
fluence of
se.
not un-
Plaintiff’s evidence did
guilty
exрlain precisely
was as
pendent
law
of inde
why
a matter of
dertake
Jackson
apart
park-
acts
drove his taxicab into the rear of a
*4
any negligence
trailer,
although
of Jackson or the driver
which,
carry-
ed truck
ing
light
itself,
and owner of
truck trailer. See
the
could have been seen
(Part 1) Blashfield, Cyclopedia
lighting
of Auto under the street
at
location
Ed.)
(Permanent
mobile Law & Practice
at a
of
distance
from 50
100 feet
Kavanaugh
2453;
Myers’
away.6
v.
Adminis
§
tratrix,
Jackson himself testified cate-
(Ct.App.Ky. gorically
S.W.2d
that the alcohol had
inter-
not
1952);
Vakares, 1929,
Franco v.
Ariz.
ability
op-
fered with his vision or
his
309,
812;
1952,
Rice,
277 P.
Schiller v.
car,
erate his
he
but
alsо stated
be-
116,
607; Lynn
151 Tex.
246 S.W.2d
v.
straight
looking
fore the collision he was
Goodwin, 1915,
112,
927,
170 Cal.
148 P.
ahead,
talking
plain-
that he was not
588;
L.R.A.1915E,
Quesnel,
Packard v.
tiff,
although
and that
the
164;
112 Vt.
22 A.2d
French
keeping
coming
time to music
over the
Tebben, 1933,
53 Idaho
27 P.2d
radio,
car
his attention was not dis-
478;
Taylor Taug, 1943,17
driving.
Wash.
only pos-
tracted from his
The
2d
such danger drinking obvious, as is the ' drivers. appears reject
The court view
primarily ground plain- tiff, taxicab, passenger was a contributorily negligent because engaged he had in with the ROSE, Appellant, Addie Mae driver of the I diffi- taxicab. have two disposing culties with this basis America, UNITED STATES of the case the driver and owner Appellee. place the truck. In the trial first No. 15575. court did not direct the verdict in their ground
favor on the guilty Appeals United States Court of negligence. contributоry If the District of Columbia Circuit. arising question regulation Argued Sept. 21, 1960. jury been submitted to the Decided Oct. might have found for the *6 which event I do not think this court Rehearing Petition En Banc Denied justified reversing. would Nov. Secondly, agree I the evidence of showed law, as matter of was not shown as matter of law have proximate been a of the collision cause unlighted truck. As this court said in & Baltimore O. R. U.S.App.D.C. 198, 202, 92 395, 204 F.2d
It cannot “be said that the failure unlighted object see within the range headlights negli- of one’s gence per se.”
If this is true as to the driver of the
taxicab true as to who was passenger. It seems to me the permitted
should have been to decide brought
whether the factual situation regulation play and, so, into if whether comply the failure оf the truck driver to Ahern, Albert Jr., J. proximate with it was the cause C.,D. with Laughlin, whom Mr. James J. collision, plaintiff’s negligence or whether C.,D. brief, was on proxi- contributed that collision as a appellant. and, therefore, cause mate barred recov- Smith, Mr. Donald S. Atty., Asst. U. S. ery him. with whom Messrs. Gásch, Oliver U. S. As driver and Atty., owner of the auto- Belcher, and Carl W. Asst. U. S. mobile, appellees Bowling, Jackson and Atty., appellee.