24 App. D.C. 524 | D.C. Cir. | 1905
delivered the opinion of the Court:
Ordinarily the question of negligence is for the determination of the jury. It is only where the probative facts are undisputed, and where all reasonable minds can draw but one inference from them, that the question becomes one of law for the court. Mosheuvel v. District of Columbia, 191 U. S. 247, 252, 48 L. ed. 170, 172, 24 Sup. Ct. Rep. 57; Washington Gaslight Co. v. Poore, 3 App. D. C. 127, 137; Adams v. Washington & G. R. Co. 9 App. D. C. 26, 31.
There was some slight conflict in the evidence in this case in respect both of the negligence of the defendant and the contributory negligence of the plaintiff, and this conflict it was the qirovince of the jury to settle, they being the exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony.
Considering the question upon the plaintiff’s evidence alone, which the learned trial justice seems to have done, the credibility of his witnesses must be assumed, and full effect must be given to every legitimate inference that can be deduced from their testimony. This being done it must appear that no other reasonable conclusion could be reached than thatfhe plainly failed to mate out a case sufficient in law to entitle him to a verdict and judgment thereon. Any doubt or uncertainty as to this conclusion required submission of the issue to the jury under instructions properly stating the principles of law applicable to the particular case presented by the evidence. Baltimore & P. R. Co. v. Golway, 6 App. D. C. 143, 165; Adams v. Washington & G. R. Co. 9 App. D. C. 26, 31, and cases cited therein, as well as those above.
The question of defendant’s negligence in cutting down the tree in the street without using proper precautions to prevent injury to passers-by was clearly one for the determination of the jury. Its submission, however, depended upon whether the court was right in the conclusion, as matter of law, that the
Had the question of plaintiff’s negligence been submitted to the jury they might have found a verdict against him; but we are pot convinced that all reasonable men must necessarily reach that conclusion.
Whether there has been culpable negligence in any case necessarily depends upon the special facts and circumstances surrounding the parties at the time, and shedding light upon their conduct.
The rule of application is determined by the relations of the parties at the time, and the duties which the lawyimposes upon, or requires of, each in respect of those relations/ What would/ sometimes be held culpable negligence might; under other conditions, be deemed an exercise of sufficient care/
In this ease the duty imposed upon each party by well-established principles of law is of special importance in determining whether either failed to exercise due care under the facts and circumstances shown by the evidence. As was correctly stated in the first and second special instructions requested by the plaintiff, the District of Columbia has the exclusive control of the streets of the city of Washington, and is charged with the duty of seeing that they are kept reasonably safe for the passage of persons using the traveled portions of the same. It has the right to cut down and remove shade trees growing in the streets when to do so may be regarded by its officers as necessary or expedient; but in so doing it must take such precautions as will prevent unnecessary or unreasonable danger to persons usings' the streets for the purposes for which they are intended.
Persons passing along the streets have the right to assume that there are no conditions of exceptional danger requiring special watchfulness; nor will it be presumed that they knowingly put themselves in danger. Washington Gaslight Co. v. Poore, 3 App. D. C. 127, 136; Howes v. District of Columbia, 2 App. D. C. 188, 193; District of Columbia v. Bolling, 4 App. D. C. 397, 402; District of Columbia v. Haller, 4 App. D. C. 405, 414; District of Columbia v. Boswell, 6 App. D. C. 402, 418;
The plaintiff testified, it is true, that as he rode up the street on his bicycle he saw some men digging around the tree, but that it was standing upright, and he saw nothing to cause him to apprehend danger. As there were no ropes or barriers in the street to give warning, the question whether what he saw was sufficient to warn an ordinarily prudent person of probable danger, and to cause him, in the exercise of reasonable care, to stop and make an examination before going on, was one for the determination of the jury. District of Columbia v. Whipps, 17 App. D. C. 415, 420. This testimony was quite different from that presented in Swart v. District of Columbia, 17 App. D. C. 407; District of Columbia v. Ashton, 14 App. D. C. 571, and others that have been cited on behalf of the appellee.
Strong reliance is had by the appellee upon the further fact testified to by the plaintiff, that, as he neared the point where the tree fell upon him, a colored man ran out from the tree shouting and waving his hands. He proceeded, however, to say that he “was confused, and, not knowing what to do, or what was the matter, turned his wheel towards the west side of the street, diagonally northwestward, and just as he about reached the curb the tree, or some part of it, fell on him.” He also said that this was but a few seconds before he was struck. One of defendant’s witnesses said “that the calling of the men, the passing of the buggy, and the happening of the accident all occurred within several seconds.” And the witness Broaddus said that when the man called to plaintiff “he was then too close to the tree to go back.”
It was also for the jury to determine whether, under the circumstances stated, the plaintiff was guilty of contributory negligence in the action taken. “An act done * * * in the presence of impending danger to life or limb, for the purpose of escaping such impending danger, may not, in the contemplation of law', constitute contributory negligence, though it may in fact have contributed to the production of the injury complained of.” Washington & G. R. Co. v. Hickey, 5 App. D. C. 436,
We are of the opinion that the court erred in withdrawing the case from the jury, and that the question of the negligence of each party should have been submitted to them under instructions substantially as requested by the plaintiff.
The judgment will be reversed, with costs, and the cause remanded with directions to grant a new trial. It is so ordered.
Reversed.
