*1 pointed “that when It sented. Roger MACHANIC, Appellant, production of a a defendant seeks [18 statute defined statement as STOREY, Appellee. 3500], has Kate the district court U.S.C. § duty whether determine to affirmative No. 17098. is in exists such statement Appeals United States Court of so, and, if possession of the Government District of Columbia Circuit. production the state- to order Argued 7, 1962. Dec. ment.” Decided March 1963. judge such Rehearing A trial Petition for En Banc May 1, Denied necessary 1963. may to determine inquiry be the stat conditions not the whether Rehearing Petition for Before the Divi- inquiry His satisfied. been ute have May 6, Denied sion interrogation witnesses, or involve camera examination may make an he affect Considerations statement. by the determination ing ultimate pro or not judge whether аs to trial to be of the statement duction sufficiently in Saund treated been necessary. ,ers, no elaboration say in our Suffice record error on judgment there was say that That is not
presented here.2 trial. a new appellant is entitled judge no exam conducted trial Since circumstances, we will into the ination he shall the end that the case
remand taking inquiry, what apprоpriate make per necessary steps deem he ever not the whether to determine himmit report pertinent parts thereof
police decides produced. he If have been
.should affirmative, decide next he will trial to or the failure or not
whether prejudi production resulted der such concludes that error.3 If cial error, trial. will order new Conversely, decides either if he negative, he will enter a new a recоrd of conviction order review.
preserved
Accordingly, we remand for further conformably to
proceedings said.
Remanded. fairly should noted that April 12, 1962, long Rosenberg occurred States, before 3. See United 360 U. opinion our Saunders had come down. L.Ed.2d S. States, Saunders v. United su pra note 1.
Pledger, Jr., Mahoney, Jr., John F. and Pledger, Jr., Washington, Harrison C., brief, D. appellee. were on the Washing- Before Wilbur Miller, K. Judges. ton Circuit Wright, WASHINGTON, Judge. Circuit This is an automobile accident suit which a directеd verdict was entered defendant at the close of the tiff’s appealed, case. The contending presented that he sufficient evidence to take case to the erroneously that the District Court di- rected a verdict. consisting
testimony by
Pennslyvania
himself and a
Officer,
State Police
who witnessed the
accident from a distance of
some
feet, may be summarizеd as follows:
July 4, 1960,
On
returning Washington,
defendant were
C.,
D.
automobile from
Butler, Pennsylvania,
they
had
spent
holiday
weekend with cousins
They
defendant.
commenced the
3:,15
trip
return
p.
at about 3 or
m. on
plaintiff,
years
the 4th. The
a man 28
age,
and,
drove for about an hour
feeling sleepy,
turned over the
defendant,
young
woman in her twen-
Approximately
ties.
five minutes after
wheel,
asleep.
she had taken the
he fell
They
Pennsyl-
were at that time on the
Turnpike,
vania
a dual
with
separated
lanes,
four 12-foot
in the mid-
strip,
dle
a 10-foot medial
and bor-
dered
on each side
10-foot shoulder
fair,
or “berm.” The weather was
visibility
good.
dry,
road was
holiday
quite heavy,
traffic was
ac-
cording to the
Police
State
Officer. The
defendant,
considered
with
familiar,
he was
whose
petеnt
a com-
good
driver in
whom had
apprehen-
He had no
confidence.
day.
her
on that
sion about
Nei-
drunk
ther he nor she
intoxicat-
ing beverage
day.
on
Before the
Machanic,
Mr. David
Washington, D.
sleep,
plaintiff went
defendant had
,
appellant.
C. for
she did
to him that
stated
feel the
Edgerton,
sleepy”,
Mr. Justin L.
and he had observed
Washington,
“least bit
C.,
nothing
sleepy.
D.
that she
whom Messrs.
to indicate
Charles E.
making
p. m.
ear left the
At about 4:15
“was
an effort”
steer and
“get
Turnpike,
raising a
of dust” on
“cloud
the car back in control.” He ad-
and,
berm,
wide,
feet
there about 12
mitted that the car could
then
dust,
highway,
shown
ran
tracks in
as
straight
“I assume it
*3
embankment, was,”
actually
12-foot
toward a
but stated that he didn’t
abutting
“graduated
berm, at
slant”
know
the
where was.
degrees.
of 45
There were no mаrks
Following
accident,
the
the tires were
skidding.
indicate
ear hit the em-
The
good
described as
in-
in
condition and
bankment,
air,
into
made one
went
the
although
flated,
tire
the left front
was
complete turn in the air and then landed
leaking slightly
process
and in
of de-
the
Turnpike upright
on its wheels.1 flating, and the rim on
that
which
tire
through
plaintiff
The
the
was thrown out
severely damaged,
was
was
mounted
clоsed sun roof of the
onto the Turn-
car
point
the
where the
not hold
tire would
pike
seriously injured.
and was
air. Plaintiff
cross-examina-
stated on
injuries.
defendant also suffered some
question
the
tion that
tire in
have
35,000
been on
car for as much as
thing
the
asleep,
After
fell
next
he
the
re-
miles.
plaintiff
called
the
was that
woke
he
very
up
suddenly
“felt a
and
violent
as a wit-
The defendant wаs not called
swerve in
car”
“a
the
terrific sense
plaintiff
Police
ness.
the State
centrifugal
of
force” in his stomach. He
had stated
Officer both testified that she
testified on direct examination
he
that
explain how
them
could not
that she
instinctively
situation,”
“reacted
to the
the
had occurred. She told
the accident
wheel,”
“reached
for the
made “con-
over
nothing
had
to the
Officer that
it,”
just
tact with
felt himself
evidently meaning
then
automobile,
the
that
“being flung
he
from
car”
next
steering
the
had
failed.
mechanism
not
“hurtling through
He
the air.”
plaintiff-appellant’s
of
At
the close
“didn’t
the
stated that he
have control of
for a directed
moved
defense
the
any way”
car in
in the fraction of a sec-
granted
the
motion
verdict. The
being
On
ond before
thrоwn out.
cross-
judge.2
indicated that
examination
“grabbed”
awakening
upon
present, as
had
or
like
cases
Love, 95 U.S.
pointed
wheel with both
'“touched” the
in Boland v.
we
driving fashion,”
“in
App.D.C.
hands
a normal
departure
part
the de-
of
of
On the basis
times
inattention
on tbe
some
given
driving
permitting
to leave
of
ear
and the duration
in
fendant
testimony,
path.
sudden
and the time the
have
in his
been
It
оccurred,
grabbing
the defendant
could
action
accident,
than
or it
have been
for not more
fifteen
that caused
wheel
tire,
happened.
or
rim
minutes
the accident
a defect
when
been
have
inspected
officer, when
because
pertinent part:
judge said,
left
found
2. The
after
car
deflating
any
gradually
and that
“There is no
whatever
tire was
of
front
was mounted
rim on which it
of the defendant.
damaged.
There
Now that
She was
the car.
is no
c.ould
anything
It could
in the accident.
she failed to do
occurred
evidence that
have
Consequently
done,
previously.
have
existed
she
she
should
speculate
something
have to
as to
she should
would
did
responsible
causes was
done. There is
evidence that
of the three
she
which
speed,
in this
rate of
It well settled
at
excessive
for the accident.
any
recklessly.
neg-
least,
way
jurisdiction,
sure,
the evi-
that when
ligence
proven by
proving
capable
one
either
can be
circumstantial
dence
possibilities,
evidence,
well as
it does not
evidence as
direct
or more
two
prove
any
There
even
is no
evidence in
one.
is not
there
сircumstantial
upon
instance from which
which the
could be
draw
basis
probability,
probability,
possibilities,
are
inferred.
There
or infer
three
responsible
the basis of the
as to
the other cause was
one
caused the accident.
have been
the accident.”
care,
(1955),
of Colum
failed to use due
law of the District
is suffi cause of
bia
not otherwise
as whether
controls
explained
case to
cient
or shown. See Annotation:
evidence to take
place
“Applicability
jury,
doc
whereas the
road,”
trine
injury here,
vehicle leaves
motor
—controls
—
particularly
A.L.R.2d 6
standard
29-44,
including (to quote
22-27,
Bo
parties,
cases referred to at
Dorney,
52-64,
opinion)
land
particular
“whether
73-114.4 See also Lane v.
is or is
conduct involved here
Lеe
N.C.
with this driver unless the ordered. So care, due control had failed to use Judge if the cause of the accident MILLER, K. Circuit WILBUR explained shown. is not otherwise (dissenting). ‘Applicability of See Annotation: correctly my judge view, ipsa loquitur doctrine verdict for the defendant directed a road,’ A.L.R. motor vehicle leaves him. The the reasons stated ” * * * 2d 6 negligent prove act or omis- failed to support, The A.L.R. annotation cited part of defendant and the sion on of this ity the author- statement shows that doctrine of res does overwhelming; indeed colleagues thеrefor is not help My state in their him. points are that there the annotation opinion: “ authority. * * But even * different lines On cross-examination under the rule as stated the upon indicated that he had majority, inference there could be no awakening ‘grabbed’ negligent appellee here that because ‘touched’ the wheel with (a) driver did not have exclusive con- both hands ‘in nоrmal (b) car, and trol of making fashion,’ *6 he ‘was an is “otherwise the cause ‘get effort’ to car back steer the shown,”. is, by appel- explained or —that in control.’ He admitted the appel- interference with lant’s admitted high- car could then have been on the driving. lee’s was,’ way, and ‘I assume it describing they say actually the After stated that he is didn’t know major- ipsa, of res the rule wherе it was.” ity add, rule should' “We think the same traveling sleeping passenger A in a car jurisdiction” apply infer in this so grabbed turnpike speed who awoke and Columbia rule should that the District of consistently wheel cannot changed. Washington Loan &. In say the which imme- followed Edgerton Judge Hickey,1 Co. v. Trust diately would not have ipsa loquitur by succinctly res defined negligent. driver had not been Nor can saying: sаy the automobile was under the ex- “ * * * ques- principle in Hence, clusive The control of the driver. simply ipsa applicable. that when the cause is not tion is known, is of an accident follows failure (3) un- defendant’s the likely prove any negligent to act or omission person harm do unless part of the defendant and his own is defend- in control admissions on cross-examination made it negligence may be inferred ant’s been, clear that a verdict should have * *” additional evidence. without was, as it directed for the defendant. satisfactory. definition is this I think majority say: The Capital Transit Co.2 this Brown v. In “Authority overwhelming is court said: proposition auto- leaves, mobile the res doc “Where stationary object applicable, it more collides with means no off trine is causing claiming road, injury damages party pas- than that negligence proof fact, senger, produced of a has U.S.App.D.C. 59, 337, 338, 61, 137 U.S.App.D.C. F.2d 1. 78 2. 75 facts, action which war based on must related series of granted negligence, if, no reason- inference of rant the they compel able men an inference. could reach a for the such verdict plaintiff. respect, In Suprеme this we said the- stated sois Sweeney Erving, 228 Tobin case:4 Court L.Ed. 815. “ U.S. * * * mere scintilla of [A] Where, here, matter is a sufficient; evidence is not due to surmise that the is not whether evi- there is defendant is cause for which dence, any upon but whether there is inapplicable. liable, the doctrine properly proceed which a can negligence of If than the causes other upon party find a verdict for the produced defendant proof imposed; whom the onus of is bound being upon the burden such causes exclude the injury establish the preponderance of evi a fair alleged, if the evidence fails ade- Here sum substance dence. quately element, either appellant’s is that an in evidence the motion a directed [for verdict] jury oсcurred.” granted.” should be also, the sum and substance case proof admittedly absent, As appellant’s is that an accident only speculated that de- occurred. negligent and was liable. fendant so majority that “the law of admit understanding always My been that controls as to of Columbia District speculation permitted. I evidence to whether there is sufficient would affirm. jury,” as we sаid take the case case Tobin Penn- much cited sylvania R. Co.” applicable to the so “The law *7 of far it concerns standard parties, required is the injury, hence, place of Pennsylvania; but the the law of BELT, Appellant, Charlotte J. application standard must according to the law made America, UNITED STATES of procedural is a forum Appellee. Consequently,
matter. No. 17431. sufficient evidence whether there case to must be to take the Appeals Court of United States according to the law of District of Columbia determined Circuit. (Em- Columbia.” the District of Argued Feb. 1963. added.) phasis March Decided sure, the standard of conduct is place the law the injury; rule our heretofore standard, is, application shows defend-
whether the it and so ant violated
governed by So, forum. motion a directed verdict
defendant’s 262, 263, App.D.C. App.D.C. F.2d at 436. 3. 69 denied 306 U.S. cert. L.Ed. 1040 S.Ct.