Pauline Loketch v. Capital Transit Company
248 F.2d 609
D.C. Cir.
1957
Check Treatment

*1 Appellant, LOKETCH, Pauline COMPANY, TRANSIT

CAPITAL Appellee.

No. 13123. States

United Columbia

Argued April 1957. July Rehearing Denied

Petition Sept. 18, 1957. C., Feld, Washington,

Mr. Arthur S. D. Joseph Bulman, Messrs. D. Sidney Z. Goldstein Samuel Goldman, Washington, C.,D. Prettyman, Judge, Circuit dissented. brief, appellant. Casey, Jr., Washington,

Mr. Francis L. Connolly, C.,D. Paul with whom Mr. R. Washington, brief, C.,D. appellee. Prettyman, Before Bazelon Judges.

Washington, Judge. BAZELON, Circuit Appellant, a bus down and when the bus came to She company, suit herein, Dorothy Whalen, operator of an automobile with which charged specific of both *2 explaining appellee, she the circumstances As defendants. accident, ipsa loquitur loquitur ipsa, res as well. be- res on inapplicable comes to a case to it before a for trial case came on appellant’s apply. would otherwise The correct conclusion and at case, granted appellee’s rule lies between these two contentions. This motion for a directed verdict. peal ipsa apply pas That res on is from the senger injuries in common ac carrier that verdict.1 questioned. By cidents is not virtue of doctrine, ipsa jury may Usually, res infer “that where in cases merely neglected plaintiff defendant loquitur on, had to exercise that is relied high degree owing by status, ac care common the fact passenger.” Capital injury. carrier to a cident, Cole Cole v. and his See Co., U.S.App.D.C. page Co., U.S.App.D.C. Transit 90 page Capital at Transit appears Here, (1952). at it because Where 195 F.2d 568 evidence, however, a co-defendant as there was reasonably appellant ipsa inapplicable, could not conclude that res by proximately prove caused the circumstances undertook to any part, de witnesses fault defendant’s called as the accident. She fendant is entitled to a directed verdict. both the driver of operator negating ipsa That the evidence the res with which liability testimony inference defendant’s it From the plaintiff emerge emanates from the rather than state. the facts we now witnesses unusual, is defendant but it K proceeding westward immaterial. Northwest, Street, Street the Sixteenth at important What not pedestrian auto- crosswalk. source but whether the left of the mobile drew at altogether negates defendant’s stopped. When the prima also liability flowing facie from the application to move. The auto- ipsa loquitur. both vehicles started of res Evi bringing into commenced a turn mobile dence the circum path not, Street, stances of the accident does Sixteenth across the as appellee contends, ipsa inap make res The bus driver the brakes” bus. “hit Washington plicable. Loan Co. stop, & Trust to a bút Hickey, U.S.App.D.C. 59, 61, colliding right rear of before (1943). F.2d The doctrine be automobile. The bus driver said inapplicable comes when the circum speed of about at a two completely stances have been so elucidat hour; per Mrs. Whalen said she started ed that no inference defendant’s per or ten miles hour. about can be made. traveled two three The bus had when the automobile started theory Appellee’s is that front of it. The collision occurred apply driver had no alternative but to beyond came halt to a' somewhat forcefully did, his brakes as if he crosswalk. The was to avoid a serious collision more indicate the width of the does actually with the Whalen car than en crosswalk. injury sued, and that was therefore solely to Mrs. contends that the doctrine attributable negligence cutting ipsa loquitur precludes direction in front of of res verdict, Capital Co., supra, of a at least unless the Cole v. Transit bus. defendant negat- accident. An auto introduces evidence similar negligence. ing Appellee’s conten- driven one Barnes cut in front plaintiff suddenly stopped, tion is introduces of a street car and compromised 1. The case co-defendant not before us. Whalen -was charge plaintiff’s causing ate favor of make a car to the street negligently op- the streetcar was said:We erated the motorman. U.S. [90 deciding, Assuming, *3 App.D.C. page 290, 195 F.2d at primary cause pages 569-570.] of Similarly here, the con- even if the evidence es- was not still that primary trolling tablished that of this suit “the cause of the trial issue in the negligence, accident” was Mrs. Cole, Mrs. a between question there remains the Company. Here the whether the the Transit negligent safety placing driver was Company, in for highest bus in a situation where his passengers, held to the degree alternatives a serious collision and of care commensurate involved, By a less serious collision. particular the bus hazards the which, testimony, case, driver’s the bus had moved means this as to only two to three motor- feet before the which a the care and caution began foresight skill, to cut in At its front it. man of reasonable speed fairly per hour, of two miles prudence ex- took the could be bus about one second pected condi- to move that dis- under the exercise to resulting leading tance. At automobile’s rate of to and tions speed perhaps Co., Inc., it covered v. as much collision. Hecht in the U.S.App.D.C. ten or Jacobsen, 1950, fifteen in feet It time. ques- 81, seem then second 180 F.2d 13. The crucial after started, both vehicles did tion is not what the motorman automobile already have emer- been he was to twelve after faced beginning gency car, ahead of but how the bus and the Barnes in happened in that front becomeinvolved nevertheless con- through emergency. tinued on entire width of Were circumstances ultimately by proper crosswalk and such care and that he foresight apprehended collided with the should automobile. have Whether danger regard- so, If could or should a collision? have stopped slowed or preferred less of bus sooner the streetcar’s than did, thereby avoiding way, a collision or it became the stop made, even as a violent as he duty motorman’s do all that rea- depend upon matters not in evidence— sonably been done example, the width of the crosswalk. danger. impending Bell avoid the Co., Inc., Coppridge, 1946, On the evidence in the Cab at the time U.S.App.D.C. 337, moved for a directed ver 158 F.2d dict, conclude, Cole, we 540; as we did in Transp. Corporation Wichita question that the is “within Braly, Cir., 1945, 150 F.2d jury province to decide.” questions 315. Hence there arose question will Whether continue to province fell within appellee puts after be for the Upon their to decide. solution depend upon proof proof. will hung ultimate decision as preponder- did whether the evidence remanded. Reversed and repeat kind, think it well here what we in a of this We add that case Peigh Co., opinion, & R. v. Baltimore O. difference of said is room U.S.App.D.C. 198, judge for the trial to al- wise course (1953): go jury. 44 A.L.R.2d 671 If a the case to to the ver- low contrary not wish to or “We do underestimate is deemed the .court to be dict weighty judgment deprecate reasons which led to the trial to direct a verdict non obstante veredicto. Action this appeal It is with real defendant. reluctance that court the event such reached the conclusion we have that he would not entail the trouble expense in error. But we think it well to of a new trial.” down, Judge down, (dis- PRETTYMAN, ed Barnes slowed suddenly. streetcar There senting) . question testimony upon no the crucial this question, as I would affirm. whether the motorman should correctly says, how the court danger. In our case happened become major the evidence is to thrust of emergency; he have point. Applying rule of the Cole danger theAs ? of a collision get case case I to the facts in this out, plaintiff correctly points court also put He the result trial reached. calling in her my correctly, did so view. driver. driver and the *4 accept I would the evaluation The simple clear. and are The facts evidence heard it. made who standing car and Whalen bus nothing support I see a conclusion waiting an intersection side side ap- the bus driver change. The traffic for a prehended danger, e., should have i. The the curb. was next standing his that a car slowly and up, and both they left as waited eight to (reaching car fast the Whalen going right quick to make a turn across hour). car The Whalen ten his front. the bus. front of across in cut bumped but “hit the brake” driver the car. fender of rear width within the occurred affair whole Loketch, pas- a crosswalk. senger stopped. when evaluated The trial court McELRATH, Appellant. In re Robert blame. driver found the bus case at that.

I leave the OKA, Appellant. re Wilfred In I the matter see SYMONDS, Myer Appellant. In re C. evidently saw GLASSER, Appellant. In re Harold 13788 and Nos. going amake his a car on left 13810, 13790 and 13811. breakaway across quick and turn right. He was front of bus to United States passing upon until to wait not called of Columbia him, passed on the chance Argued May might cut across that some July 5, 1957. that even And fact front of him. applied as he did brake when he hit pressure applied had he less harder the car have hit he would

brake jolt. worse have been a and there accept the Cole doctrine of I heavily by upon the court so vitally differ so facts But the this case. reached is the conclusion here. There be reached traffic, moving driving an automobile upon

unexpectedly the tracks cut next auto- of a streetcar.

ahead slow- line of traffic ahead