267 F. 645 | D.D.C. | 1920
Mary E. Allen, alleging that she sustained personal injuries through the negligence of one of the drivers of the Standard Oil Company, instituted an action against that company in the Supreme Court of the District. From a judgment in her favor, the company brings the case here for review. '
There was testimony tending to show that in June, 1915, the plaintiff, with others, was riding in an automobile going in a northeasterly direction along New York avenue, Washington. As the automobile approached Sixth street, where it intersects the avenue, a heavy steel wagon with a capacity of 800 gallons, drawn by three large horses, belonging to the defendant company, was rapidly advancing from the north on the east or left-hand side of Sixth street toward the avenue.
Without objection plaintiff introduced in evidence a police regulation, which reads:
“A vehicle shall keep over, as near as practicable, to the right-hand curb, so as to leave the center of the street free and open for overtaking traffic — the slower the speed the nearer the curb.”
With respect to this regulation the court, at the request of the plaintiff, charged the jury as follows:
“The jury are instructed as a matter of law that if they find from a preponderance of the evidence that the driver of the defendant company violated the municipal regulation offered in evidence requiring vehicles to keep to the right of the street, and that such violation of the regulation was the proximate cause of the collision resulting in the injuries complained of by the plaintiff, then the defendant was guilty of negligence.”
To the giving of this instruction the defendant company objected, “because,” it said:
“There is no evidence in the case tending to show that violation of said regulation, if the regulation was in fact violated by the defendant, was the proximate cause of the accident, or had any relation whatever to the accident.”
The objection was overruled, and this action of the court constitutes the sole assignment of error in the case.
“is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it” Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 474 (24 L. Ed. 256).
“no evidence * * * that the violation of said regulation * * * was the proximate cause of the accident, or had any relation whatever to the accident.”
We have demonstrated that, if the regulation had been observed, the plaintiff would not have been injured. In this connection our attention is invited to section 269, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246), which provides that on the hearing of an appeal — •
“the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
We do not think the section is pertinent here. It means that a judgment should not be reversed for any reason that does not affect the substantia] rights of the parties, even though there be a technical ground for doing so. No warrant is afforded by it for holding that a party who assigns one reason in the court below for his objection to an instruction may urge, an entirely different one in this court and have it considered.
Moreover, there is authority for ruling that a regulation similar to the one before us is for the benefit of persons crossing a street, as well as for one driving a vehicle behind another. An ordinance of Nos Atigeles provided that every person riding or driving a vehicle upon any street “shall travel on the right-hand side of such street and as near the right-hand curb thereof as possible.” This ordinance did. not expressly provide, as does the regulation here, that the driver of the vehicle should keep to the right-hand side of the street, so as to leave the center free and open for overtaking traffic; but that, of course, was its effect. It is therefore in substance the. same as the regulation. A collision took place between an automobile and a bicycle. At the time of the accident the driver of the automobile was proceeding in a westerly direction on the south side of Fourth street in that city. The plaintiff, riding his bicycle, was traveling southerly on Clay street toward the intersection of Fourth, with the intention of turning east on the last-named street. He was going downgrade, and was unable to control his bicycle, because the brakes would not operate. As he was completing the turn on Fourth street he collided with the defendant’s automobile, which, as we have said, was on the left-hand or wrong side of the street, and was thereby injured. A nonsuit was granted by the ti'ial court, on the ground that there was no evidence indicating negligence on the part of the defendant; but the higher court reversed this ruling, holding that the violation of the ordinance by the defendant in traveling on the left-hand side of the street constituted negligence per se, and that it was for the jury to say whether or not the negligence was the proximate cause of the injury. Baillargeon v. Myers, 27 Cal. App. 187, 149 Pac. 378.
In Johnson v. Heitman, 88 Wash. 595, 153 Pac. 331, the ordinance considered required the driver to keep on the right-hand side of the street. There was a collision between a motorcycle and an automobile
Applying the doctrine of these cases to the case at bar, it would appear that the driver of the wagon was guilty of negligence in disregarding the regulation, and that there was no error in asking the jury to say whether or not there was a causal connection between the negligence and the accident.
We are satisfied (a) that the applicability to the accident of the regulation in question was not raised in the lower court, and for this reason it should not be considered here, 'and (b) that the court did not err in passing upon the objection made ter the instruction submitting the regulation for the consideration of the jury. In view of this it follows that the judgment must be affirmed, at the cost of the appellant.
Affirmed.