Simmonds v. Capital Transit Co., 147 F.2d 570

Simmonds v. Capital Transit Co.

147 F.2d 570

D.C. Cir.

1945

Check Treatment

MILLER, Associate Justice.

Appellant sued in the District Court to recover damages for injuries suffered when he was struck by one of aрpellee’s streetcars. Appellee moved for a judgment under Rule 50(b) of the Federal Rules of Civil Prоcedure1 and the trial judge granted the motion, notwithstanding the jury’s verdict in favor of appellant.

The rule, аpplicable on this appeal, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was stated in the Shewmaker case,2 decided by this Court two months after judgment was entered by the trial court in the present case. It requires us, in deciding whether to uphold the vеrdict of the jury or the judgment of the Court, to balance the weight of the evidence against the judge’s detеrmination and in favor of the jury’s determination; the-question being, not whether there is sufficient evidence in the rеcord to support the judge’s findings and decision, but whether there is sufficient evidence, when construed most fаvorably for the party upon whom the onus of proof is imposed, from which a jury of reasonable mеn could properly have reached the verdict which was reached.

The rigor of the rule appears from the following language of a recent Supreme *571Court decision: “The motion for judgment сannot be granted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍unless, as matter of law, the opponent of the movant failed to make a case and, therefore, a verdict in movant’s favor should have been directed. The motion for a nеw trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is agаinst the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in аdmission or rejection of evidence or instructions to the jury.”3 [Italics supplied] The Supreme Court went on to say: “Should the trial judge enter judgment n. o. v. and, in the alternative, grant a new trial on any of the grounds assigned thеrefor, his disposition of the motion for a new ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial would not ordinarily be reviewable, and only his action in entering judgment would be ground of appeal. If the judgment were reversed, the case, on remand, would be gоverned by the trial judge’s award of a new trial.”4

An examination of the record shows, as the trial judge noted in his mеmorandum opinion, evidence given by appellant to the effect that he was walking toward the center of the street within a crosswalk, where he was struck by appellee’s streetcar. He testified, also, that no street traffic lights were in operation at the intersection where and when the accident happened; that no police officer was on duty, there, at the time; that the crossing wаs clear of traffic when he stepped from the curb; that, after taking several steps, he looked again to his left — the direction of approaching traffic — and saw a streetcar coming towаrd him, of the “streamliner” type, but some distance away; that he believed he had sufficient time to get across Connecticut Avenue to the streetcar loading platform and continued walking at a normal rаte of speed; that he did not look again to his left toward the approaching car; that just as he stepped over the first rail of the streetcar track, he suddenly saw a big light and some enormous object in front of him; and after that he remembered nothing. There is no dispute that appellant was struck by appellee’s car and that he was injured.

It is true there was conflicting and contradictory evidence and the trial judge was justified in concluding that the evidence preponderated against appellant’s allegations and contentions. But that was not the test to be applied upon a motion for judgmеnt n. o. v. Assuming the correctness of appellant’s testimony, he, as a pedestrian, had the right of way5 and аppellee’s motorman was, as a matter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of law, upon notice that he had it;6 as a consеquence of which the motorman was under a duty to keep a lookout and to take propеr-steps to avoid an accident.7 In other words, construing the evidence most favorably to apрellant and giving to him the full effect of every legitimate inference therefrom — as the law requires — reasonable men might well differ in their conclusions, upon the evidence so considered. No more is requirеd to sustain the verdict against a motion for judgment n. o. v. Inasmuch as there was no motion, in the alternative, fоr a new trial, it follows that the judgment below must be reversed.

Reversed.

Notes

28 U.S.C.A. following section 723c.

Shewmaker v. Capital Transit Co., — U.S.App., —, 143 F.2d 142, and cases there citfed.

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L. Ed. 147; see, also, Dickerson v. Franklin Nat. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ins. Co. of New York, 4 Cir., 130 F.2d 35, 37; Adams v. United States, 7 Cir.s 110 F.2d 199, 202.

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 234, 61 S.Ct. 189, 196, 85 L.Ed. 147.

Trаffic and Motor Vehicle Regulations for the District of Columbia, Part I, Ardele III, Section 5.

American Ice Co. v. Moorehead, 62 App.D.C. 206, 66 F.2d 792; Miller v. Clark, 71 App.D.C. 341, 109 F.2d 677; Steger v. Cameron, 71 App.D.C. 202, 109 F.2d 347.

Washington-Virginia Railway Company v. Himelright, 42 App.D.C. 532, 542; Griffith v. Slaybaugh, 58 App.D.C. 237, 29 F.2d 437, 439: “Defendant was charged with knowledge that other persons have a right to use and cross the street. Anticipating as he must that the street would be so used by pedestrians, it was his duty to look, to see, and to know that pedestrians were not in his road. In this situation he is required to so operate his machine that persons rightfully in, or attempting to crоss, tho street shall not be injured. His failure to see plaintiffs in time to avoid injury is no excuse. Due care required him to see them.”; Washington Railway & Electric Company v. Cullemher, 39 App.D.C. 316, 324, and cases there cited.