154 F.2d 313 | D.C. Cir. | 1946
Appellant and appellee were the owners of two taxicabs which were in collision. One Knaus was a passenger in appellee’s cab. Appellee brought civil action against appellant for personal and property damages. Appellant filed a counter-claim for property damage to her car. The passenger, Knaus, filed an action against both appellant and appellee for personal damages. There were other pleadings not material here. The cases were consolidated for trial. The evidence as to the circumstances of the accident was conflicting. The court instructed the jury that it might find for the passenger against appellant or appellee, if either was negligent, or against both appellant and appellee, if both were negligent; that the degree of care owed to the
Appellant contends that the court erred in giving the instruction on last clear chance, and also erred in permitting the verdict in favor of appellee against appellant to stand after the jury had found in favor of the passenger against both appellant and appellee. The basis of the first contention is that there was no evidence to warrant an instruction on last clear chance. We agree with the trial court that the evidence was such that the jury might properly have concluded that the driver of appellant’s cab (one Richie) had an opportunity to avoid the accident. The time was noon, and it was raining hard. Appellee stopped at a stop sign and looked both ways. She then entered the intersection in low gear to permit a northbound car to pass. She then gradually approached the middle of the intersection, shifting gears. Appellant’s car was southbound, approaching on appellee’s right. The relative positions of the cars, as they approached the center of the intersection, were such that appellee’s view of appellant’s ca)r would have been through her right windows, obscured by rain, whereas Richie’s view of appellee’s,car would have been through his front windshield, presumably cleared by windshield wipers. It was possible, we think, for the jury to have concluded that if appellant’s driver had been observant and had been traveling at a proper speed under the circumstances, he would have seen appellee’s car during the appreciable time appellee was moving toward the center of the intersection, and would have had a later opportunity than appellee either to stop or to swerve enough to avoid the collision.
The theory of appellant’s contention based upon the verdict in the passenger’s case,' is that the issues in the two cases were the same and that, therefore, the two verdicts were inconsistent. We agree with the trial court’s view of that matter. Appellee owed her passenger the highest degree of care, and the doctrine of contributory negligence, with its corollary of last clear chance, did not apply to the passenger. The issues in the two cases were different, and the averdict in favor of the passenger against both cab owners was not inconsistent with the verdict in favor of one cab owner against the other.
Affirmed.