Washington Metropolitan Area Transit Authority v. Jones
443 A.2d 45
D.C.
1982
Check Treatment

*1 45 however, say, not to that one who has that regarding property

status certain cannot at AREA METROPOLITAN WASHINGTON improve- the same repairs time make or AUTHORITY, al., et TRANSIT property ments to that aas “contractor” Appellants, meaning within the of the mechanic’s lien statute.13 Whether he so is a matter does JONES, al., Appellees. proof. Appellant, complaint, in his ade- Brenda E. et Thus,

quately alleged that he so. dis- did No. 79-293. By was not warranted. his missal affidavit support par- submitted in of his motion for Appeals. District of Columbia Court of judgment his summary opposition tial Argued En Banc Nov. dismiss, appellees’ appellant motions to successfully joined appel- factual issue with Decided March respect lees with to whether he furnished Thus, judg- work and materials. summary in appellees inappropri-

ment favor of

ate. reasons, the ruling

For above the of the

trial court is reversed and remanded for proceedings

further inconsistent with opinion.

this

So ordered. upon by lay 13. We have considered the cases relied under applicable filing requirements. the Louisiana law in difference in appellees and cited the trial in court its Savannah and dismissal, they order of are not and we conclude Callahan, Company Charleston Railroad helpful interpreting in the term “con (1873) interpreted Georgia Ga. Consti- tractor” as used in the District of Columbia provide remedy tution to or of mechanic’s Dealing mechanic’s lien statute. In v. Ward only persons actually laborer’s lien performed to the who man, App.D.C. (1930), 39 F.2d 504 or the labor furnished the materials dealing cited case with the District of the Court of performed upon proper- with which labor was statute, Columbia mechanic’s lien ty. The lien was held be available to Appeals for the District of Columbia held that employed “contractors” who others to furnish parties respect the status of with lien or labor materials. The court’s definition of statute of determined their status at the time occupation “mechanic” as one whose is to con- Thus, contracting. company a construction “machines, goods, struct wares ... realty company which contracted with a actually performs like” and who such construc- repair property against could not obtain lien tion has no relevance to our statute which property realty company when the did not provides remedy of a mechanic’s lien to property own the entered at the time the contract was general contractors and subcontractors. Nothing in into. the court’s discussion Alderman, People ex rel. Beck Board of parties’ interpret status is instructive in 545, Misc.Regs. (1896), N.Y.S. dealt with ing the term “contractor” under facts the issue of whether a realtor who had theoreti- present Bro., case. In P. v. N.E. Grassi & Inc. Loui practical training Pistoresi, Inc., cal and building in architecture and sa & 259 N.Y. “practical building Appeals construction New York Court held property qualified improved appointment vendor of who mechanic” and thus for property pursuant city building inspector. to the terms the sales as held contract was anot contractor within the mean “practical that the term mechanic” as used in since, ing of the New York lien law as owner of city persons compe- charter included those property, he could not contract with him building supervise as well tent construction interpretation self. The court’s of the term performed who manual labor with those present “contractor” is not relevant in the case Nothing specialized tools of the trade. appellant where property against was not the vendor of the opinion dealt with the term mechanic as court’s used seeking which he is a lien. statute; a lien court’s discussion of Building Demarest, Executive House Inc. v. exclusively meaning its the term dealt with (La.App.1971) So.2d 405 dealt the distinc statutory provisions qual- context of for the general tion between contractors and contrac city building inspectors. ifications of tors as these terms were used in the Louisiana importance lien statute. The of the distinction *3 damages in excess of

the jury awarded $475,000. judg- moved for Metro/Porch verdict, or, in the notwithstanding ment alternative, trial a new trial. The motions; judgment was entered denied the appeal appellees; and this favor this court was noted. A division of re- appellees, including, versed to all without passengers in the Jones’ explanation, the vehicle, holding the doctrine of last clear inapplicable to the facts of the case.2 chance grant- en rehearing Petitions for banc were *4 ed. We affirm. Trimble, A. with whom Richard Stephen Turner, D.C., on the Washington, was W. I en rehearing for opposition petition 9, 1976, dispute is that May There no on banc, appellants. for m., approximately p. at the inter- at 11:00 Intrater, whom Albert Samuel Streets, N.W., a Chevro- section of 12th & D.C., Brick, Washington, peti- was on the Carlo, by Clyde let Monte owned Jones and banc, appellee rehearing en for tion for Jones, by appellee driven Brenda collided E. Jones. Brenda by driven Alvin with a Metrobus Porch. D.C., Martell, Washington, J. was Frank approached Jones’ vehicle had the inter- banc, rehearing for petition for en on the traveling in section an eastbound direction appellees Clyde Brenda E. Jones and Jones. two-way is on 0 0 Street street Street. by stop sign 12th. The controlled at bus NEWMAN, Judge, Chief. and Before 12th, proceeding was on northbound which HARRIS,* KERN, NEBEKER, KELLY, direction, northerly one-way in a and is BELSON, MACK, FERREN, and PRYOR into There stop divided three lanes. is no Judges. Associate controlling sign signal or traffic 12th Street KELLY, traffic at the 0 Street intersection. The Judge: Associate was night weather clear on the acci- the residuum of appeal This constitutes straight dent. These two streets are and colli- litigation arising from an intersection they into the intersection level as lead passenger car and a Metro- sion between a vapor white) by (bright are lit sodium separate law- May bus 1976. Seven on lamps. had its Each vehicle head- street parties to the acci- by suits were filed on, illu- lights turned and the bus was also for a The cases were consolidated dent.1 lights, sign minated interior destination began bifurcated trial before lights. and marker 28, 1978, April 1978. On April on passengers two of the WMATA Brenda Jones and against a verdict returned she came to a driver, (hereinafter in the car all testified that bus Alvin Porch and the sign at 12th & “Metro/Porch”), complete stop at the O on jointly referred to 5, 1978, Two witnesses and the bus driver May on Streets. liability; issue * Judge suits filed were settled or dismissed a member of HARRIS was Associate damages. argument. He court before the awarded en banc court the time Waltower, case, February remaining al. v. et retired from this court effective other (C.A. 6784-76) 1982. No. was settled while WMATA (No. 79-337). appeal on principals sued each their 1. drivers and Both by passengers in the sued and all were other Washington Metropolitan Area Transit Au- addition, princi- and their In the drivers auto. Jones, (July 29, 1981), thority No. 79-293 against each other for pals filed cross-claims vacated, September indemnity. of the law- Five (cid:127)contribution testified that the stop. Jones’ vehicle did not Jones also testified that her car had Margie Adams, who viewed collision reached the far side intersection at home, outside approxi- her 12th Street the time of According the collision. to her mately above one-half block the intersec- version, she had looked in both directions tion, testified that Jones’ vehicle did intersection, before proceeding across the stop at the stop sign, at time when the and although passenger she and each tes- away, Street, bus was about a block N tified that their view the south good, proceeded then but into the intersection neither just became aware the bus until appeared again where it or stall. impact. before Porch testified he approached that as Mines, investigating police Eric offi- traveling speed intersection at a between 18 cer, gave testimony describing scuff marks MPH, from the moved center to damage found at the scene to the two lane. A witness who had been vehicles. He also stated that speed standing parked beside his car on the west limit on the two streets 25 MPH. Street, of 12th Streets, side between 0 & P The jury a verdict liability returned stated at trial that bus traveling following based on the answers to written between 20 A passenger and 25 MPH. interrogatories: Brenda Jones was negli- bus, deposition trial, whose was read at gent operation in the of her car but her approximated the speed the bus as be- was not a cause of tween 25 and 30 MPH. He also noted that accident; was negligent Metro/Porch the bus increased its between N and *5 operation the negli- 0 Streets. of the bus and that following descriptions: mate the speed of the bus. [than] “... “... Margie Adams [******] it it it should looked like it was really rolling.” was asked have on 12th fast, fast, at She trial to esti- gave Street.” faster the chance to avoid the accident and that Bren- da Jones did not.3 found that Metro/Porch had the last clear cause of the gence dent; the and Metro/Porch was not the was the negligence proximate accident; of both Brenda Jones cause of the acci- finally, proximate the jury Porch testified that he first saw Jones II when the auto ap- and were Appellants that they contend were enti- proximately 40 intersection, feet from the judgment tled to a or traveling directed verdict not- at the speed. same rate of Ac- cording Porch, withstanding the verdict because there was he then checked the view his no jury left and evidence from the to see that there could find were playing bus, no children the Porch was negligent operating near street. When the vehicle, and, Porch next saw the Jones’ even assuming negligence some on his about 15 feet from the intersection and part, at it was proximate not shown be the time he realized Jones would not be cause of the accident. to stop. able Porch took then “evasive ac- may properly grant The trial court tion.” He the brakes” and “smash[ed] motions for a verdict judgment directed or right. that, swerved to the Porch testified when, only viewing N.O.V. the evidence in following collision, the his brakes would not light most to the party favorable who operate, so he proceeded towards a vacant verdict, juror secured the no could on the lot side of the road where the reasonably party. reach a verdict for that bus collided with a tree. Porch claimed Corp., Webster v. D.C.App., M. Loeb immediately before accident his (1979). A.2d We brakes were have often stated “working perfectly.” He also stated that that in accident occurred on the intersection collisions the issues of right-hand negligence side of the proximate intersection. cause will almost Bland, pas- senger car, negligent. The also found Mabel a Jones’ was not appellants have miscon trial court that

always questions of fact to be decided be Isaac, D.C.App., Perry, 342 A.2d in which this court held jury. Aqui v. strued McNeal, D.C.App., against car (1975); Spain v. a common passenger’s suit Basinger, D.C.Mun. (1975); rier, of must be proof negligent operation A.2d 507 Shu be App., 57 A.2d 295 must “testimony consisting some upon of based weigh credibility of the wit allowed to adjectives descriptive more mere thing than speed disputes nesses as to and resolve Perry Id. and conclusions.” at distances. Id. 295-96. Co., Capital Transit D.C.Mun. Wiggins on which it was App., 122 A.2d case the facts It is in a where based, were about common carrier’s cases and, considering every legit undisputed are context, and, passenger, to a in that liability inference, only may imate one conclusion be permit finding not of the court would drawn, may rule as a trial solely testimony based negligence contributory negligence, matter of law on jarred.” “jerked Such move bus negligence or cause. D.C. Tran necessary or were “no more than the ments Harris, D.C.App., System, sit Inc. v. operation of con incidents of the usual (1971); Singleton, A.2d D.C. Carter part as veyance” which are risk App., 219 A.2d System, Transit by passengers. sumed D.C. case, In the instant con passenger A Perry, supra at 225. Inc. v. issues; flicting on basic factual testimony not the bus is able establish inside reasonably be several inferences by merely prima facie case of presented. drawn the evidence There presenting description of movement fore, we cannot hold that it was error to operation of proper equally consistent deny appellants’ motions for a directed hand, testimony On other bus. notwithstanding the judgment verdict or given by a witness who speed, unreasonable verdict. bus, is descriptive was outside the There was evidence introduced proper operation movement consistent with traveling at an unrea trial that Porch was bus, holding and is within approached sonable as he inters Perry. *6 ection4 and that he failed to maintain reasonably

proper lookout.5 The could general rule is that a court The predicated finding of on have to the lay will allow witness describe that evidence. adjectival speed in terms. Gob of a vehicle D.C., Inc., of that er v. Yellow Co. D.C.Mun. Appellants contend because Cab (1961) (witness 173 915 stated testimony Margie App., of was in the A.2d the Adams fast”); v. was too Dunn descriptions,” going it was not “driver “adjectival form of 245, 247, Marsh, F.2d liability U.S.App.D.C. the rule of 129 393 proper basis for under 354, 356 (1968) (fire engine “going pret was Perry, Inc. D.C. System, D.C. Transit 60, App.D.C. ty fast”); Doyle, 69 (1975). agree We with Smith App., 337 A.2d 224 proper 22(c) (1970) (now Reg. tain a lookout and exercise reasonable 17 18 D.C.Mun. DCRR Frager (1981)) provides pertinent part: entering v. Pe in “The in an intersection. 2200.5 care shall, 306, every cot, D.C.App., (1974); consistent with A.2d 307 D.C. driver of vehicle section], Harris, supra requirements System, drive an the at In of Inc. v. at 277. [this Transit approaching speed Harris, appropriate Frager reduced when favored driver was and crossing contributorily failing and an negligent intersection....” to be held colliding an and avoid unfavored observe correctly Appellants that because assert ille which had entered the intersection vehicle driver, duty had no Porch was the he cases, bar, favored gally. as case the In in the those ignore anticipate vehicle would another in front of the vehicles which were struck were directly sign proceed into and drivers, significant fact which is a favored Carl, Deadwyler, Inc. v. D.C. intersection. Call negligence. assessing favored driver’s Nonetheless, 701, App., 187 A.2d Inc., Pharmacy, Prescription v. Ethical Elam of that the driver has fact favored D.C.App., n.6 422 A.2d duty way to main- him of the does relieve (1938) (vehicle 98 F.2d “moving Appellants ap was take issue with fast”). testimony speed The of excessive in plication of the doctrine of last clear chance this case was evidence corroborated of this facts in case. In Mathews v. damage the extensive and the considerable Lindsay, U.S.App.D.C. 292, following distance the vehicles im- traveled (1960), F.2d the court set out the pact. present- On the basis the evidence essential of the elements doctrine: ed, the jury permitted, although was (1) plaintiff position was in a required, to find that the bus driver was danger by negligence caused of both negligent. defendant; plaintiff (2) plaintiff was of the

Appellants jury’s danger also contest oblivious or unable findings proximate cause. Gulf Oil extricate position himself from the Reed, Corp. 118 U.S.App.D.C. danger; (3) that defendant aware or was by appellants, inap- F.2d 960 cited by the exercise reasonable care should posite Reed, to the case at bar. In a seven plaintiff’s danger have been aware year and a old half child ran from behind a inability obliviousnessor to extricate him- oncoming Although wall into traffic. there danger; self (4) from the defend- evidence defendant’s truck ant with was by means available to him an traveling speed, excessive rate of the exercise of reasonable care able to court held a matter of law that striking plaintiff avoid became after he speed defendant’s was not the aware of danger inability the latter’s cause of the accident. The truck was danger, extricate himself from two or three feet the child when the failed to do so. driver first saw him. There was uncontra- gave trial court an in- appropriate testimony dicted that the accident occurred chance, including struction on last clear stepped moment the child from behind following caveat: the wall roadway; onto the it was obvious It applicable lapse is not if the time be- regardless defendant’s discovery per- tween the of the plaintiff’s hitting not have avoided child. In il and the for collision not sufficient case, the instant there was evidence collision, defendant avoid the for had driver time to and fact did required defendant is not to act in- attempt Therefore, evasive action. we can stantaneously. not hold that it was entirely unreasonable that, for the to infer but for the driv adequate We hold was an speed, er’s excessive there would have been predicate factual for the instruction last no collision. Phillips clear chance. In v. D.C. Transit *7 System, Inc., supra, the was not Appellants argue that doctrine Brenda applied Jones because the trial court there eontributorily found negligent as a competent testimony matter for was a lack of that the failing of law to see the bus approaching. accept We bus driver was aware of the other driver’s as reasonable the that, jury’s finding peril, aware, that or he been there was Porch had the last clear had collision; therefore, chance enough to avoid the we time in collision. which avoid the case, a finding negli cannot dictate that Jones’ In the said instant witness Adams gence was the of the acci a block when the away cause that bus was sign; dent. Even if we hold Jones was vehicle at the stopped stop that Jones’ negligent indeed, eontributorily testimony as a matter of law the bus own driver’s failing passing appellees’ for he effectively to look before that first saw car when stop sign, forty not bar vehicles were feet from the intersec does tion, right attempt her bus driver in fact evasive to recover where the that he did had a last clear chance to avoid the acci action. The need not have concluded jury System, Inc., Phillips dent. v. Transit Porch time in which to D.C. that had sufficient bus; 741 had D.C.App., 198 A.2d if he slowed 52 controlled governing intersections left, might have lation to the and veered

down Hawkins, jury The found Jones did Byrd stop signs.8 the collision. avoided (1979); Capitol see care at the intersec- duty breach her D.C.App., 404 A.2d fact tion; Garcia, U.S.App.D.C. therefore, assuming jury even Transit Co. the effect that F.2d 162 instructed to improperly than was in duty had a lesser of care Jones Frost v. Bene Although the case of case, prejudice was no fact the there F.2d 772 dict, U.S.App.D.C. is jury’s liability verdict on appellants. The is similar to by appellants, cited finding that Porch had upon based its distinguished bar, ultimately it is case to avoid the accident. last clear chance case there is some in the instant because Thereforé, that the logically irrelevant it is could infer jury which the evidence from might incorrectly assumed Jones have sounding the as by measures such way. legally non-existent had some to avoid im horn,6 braking swerving avoided the could have pact, appellant prejudice claim Appellants also vehicle, which had Jones’ with the collision closing argument references time at the the intersection almost cleared wealth, in the context of an Metro’s made it was hit. resources ample that Metro had assertion say prepared are not We records ability to locate certain accident find support jury’s was no evidence to possession.9 Appel in their assumed to be care of reasonable in the exercise ing Annapolis Hotel rely Washington lants avoided the could have the driver of the bus 288, 171 Riddle, F.2d U.S.App.D.C. Co. unprepared equally are accident. We in this (1948), mandating a mistrial abused its discre the trial court hold Riddle, reversed In the circuit court case. motion for a appellants’ denying tion in in a slander the denial of a mistrial motion verdict was grounds new trial on ex plaintiff’s counsel had case in evidence. weight of the contrary to the opponent his argued to the pressly Inc., System, D.C. Queen Transit v. D.C. convince them the defendant intended to Isaac, Aqui v. (1976); App., 364 A.2d an intentional could not have committed supra. client, a wrong “wealthy because it was a hotel, The inflammato big corporation.” Ill Riddle, going directly to the ry remark in entitled finally argue they are Appellants case, substantially is different merits of errors which to a new trial on account made in this case. We from the comments trial. We their to a fair prejudiced these facts.10 inapplicable hold Riddle contentions. briefly review these it next contend Appellants instruction gave an The trial court requested deny reversible error to their governing was Regulation Traffic on the D.C. proffered instruc instruction No. 3. We need not uncontrolled intersections.7 Carl, tion, Deadwyler, Inc. v. on Call based that was error because decide whether (1963), covered D.C.App., 187 A.2d regu- an instruction on gave court also transcript. disputed accuracy (now Reg. pellee (1973) 18 D.C.Mun. 6. 32 DCRR6.401 exactly part: (1981)) provides pertinent what words “The need not determine We 730.3 driver of a motor vehicle reasonably spoken, shall when version constitutes since neither were prejudicial *8 operation give necessary requiring audible to insure safe error reversal. warning his horn.” with jury to “decide instructed the 10. The trial court 46(a) (1970). 7. 17 DCRR persons equal as an action between this case equal community standing and of in the 48(a). 8. Id. it even less That admonition makes worth.” probable plaintiff argument closing one counsel for 9. In prejudiced by jury coun that the stated, the most substantial “... [Metro has] to Metro’s resources. sel’s reference any organization in the financial resources argument ap- Metropolitan At oral Area....” Moreover, evidence that the ap- favored driver there was other proposition that a speeding. Payne Safeway bus was See by controlled an intersection proaching Stores, Inc., (1963). D.C.App., 194 A.2d 669 an unfavored driver stop sign may assume intersection, entering the yield will before jury’s sup- verdict in this action is the fact that a jury and the must consider the evidence and the trial court ported by determining right-of-way in driver had refusing appel- in was within its discretion care. whether he exercised reasonable judgment lants’ motions for N.O.V. or a Accordingly, judgment new trial. grant an instruction is The refusal appeal is charge actu grounds for reversal when the ¡ form, given, although general in a more ally Affirmed. law. Evans fully jury informs the as to the Co., D.C.Mun.App., 39 Capital Transit FERREN, Judge, with Associate whom gen (1944). The trial court’s

A.2d NEWMAN, Judge, joins, concurring: Chief charge jury adequately eral to the covered join Judge opinion While I in KELLY’s requested substance of the instruction.11 court, for the I would add that the facts Therefore, Wing required. reversal is not here, manifesting by the drivers Store, Inc., Drug D.C.App. Peoples field v. vehicles, provide of both a classic illustra (1977). 379 A.2d 685 why legislatures tion of or courts—in 36 jurisdictions adopted to date—have the doc finally argue it was er Appellants comparative negligence. trine of Alvis See admission of records of a preclude ror to Ribar, 1, 11-14, 85 Ill.2d 52 Ill.Dec. bus, inspection of the of D.C. Government 28-33, 421 N.E.2d 891-95 See fered to corroborate the bus driver’s testi Keeton, generally Venturing R. E. To Do inoperable fol mony that the brakes were 45-53, Justice 85-89 lowing pro the accident. Metro failed to records, and, appel repair duce its own over KERN, Judge, dissenting, Associate with objection, gave lants’ the trial court Stan BELSON, Associate whom NEBEKER which states that dard Instruction No. 17 Judges, join *: stronger on a provide failure to evidence separate point permits Appellees presented to view trial two material weaker, leading distinct versions of their actions satisfactory less with caution As intersectional collision which re- actually point. up evidence offered on the to the verdict favorable to them: suming prohibiting the trial court erred in sulted Jones, version, testified to Mrs. giving introduction of the records and Stan One automobile, 17,12 passen- and her that such driver of the dard Instruction No. we hold complete that she came to a gers, to constitute prejudicial error was not so (which she about at the intersection 0 Street grounds for reversal. The evidence travelling and which was controlled question of how was the brakes went Street, 12th Northwest. stop sign) far it with going the bus was and how fast passenger looked it not have and her front-seat impact; traveled after She nothing, and then slowly. directions and saw going established that bus probative charged brakes and was therefore as follows: 11. The trial However, trial court did concede issue. party further instructed that the ... You are should not have order that the instruction its way right having has the given should have and that Metro/Porch been comply party assume that the other will pro- explain permitted their failure to been yield the fact that he to him but the law own records. duce their way not ex- does had the technical ordinary exercising care to him from cuse * injury Judge others. of the Division avoid Harris was a member participated majority in the en case and in this post-verdict denying appellants’ In its order argument. dissent He concurred in the banc inspec- motions, indicated that the trial court Febru- prior the court on his retirement proffered “abso- records disclosed tion of the ary *9 concerning lutely nothing” of the the condition Then, to whether this “proceeded go question she across ... I the becomes [a]ll [and] appellees constituted suf bright light by is I saw a second version can remember that put the the issue 179). The ficient evidence to impact.” (Record and at the a clear bus had last (Record of whether the driver light the flash of came from Phillips chance to avoid the accident. See 214, 244) and out be a bus at turned Inc., System, D.C.App., v. D.C. Transit operated by by owned WMATA and Mr. 740, (1964). of last A.2d The doctrine Porch, appellants. the Since 12th Street perilous clear situa “presupposes chance (Record the of Mrs. Jones was level at the of the negligence tion caused 219) the bus the streets were well- and ....” Hunter plaintiff and the defendant (Record 293-94) in the lighted at and no one Robinson, A.2d D.C.App., 224, 243), large (Record auto saw the bus at Anderson, (1972), quoting Griffin v. D.C. part what appellees’ the failure on to see Mun.App., 148 A.2d clearly required was there to seen the be as a of that court to rule matter law Mrs. apply clear majority, in order to last Frager eontributorily negligent. Jones was chance, necessarily ignore the version must Pecot, D.C.App., A.2d of the of events testified to the driver auto, Jones, the rely upon Mrs. instead The second version of what Mrs. Jones testimony testimony Mrs. Her of Adams. did at the of 12th intersection and 0 Streets stalling as to the of the auto in the intersec- night of in on the the collision contained appears supply majority evi- tion for the appellees’ a kind of presented by ease was in requisite peril of of position dence the witness, Adams,1 who mystery Mrs. was passengers were which Mrs. Jones and her in her on 12th north partying home Street (Record at placed. testimony Mrs. Adams’ the and the of the intersection where bus 380) de- really rolling”, the bus “was collided, (Record 388) auto at and who twice 387) (Record her spite testimony further at happened that “the accident so testified it you that “I can’t tell how fast bus] [the the of it difficult quickly” that details were majority evidence going,” supplies was the 387-88.) (Record at Her for her to recall. negligence part appellants, of of the (Record 385) at was the auto of version placing appel- which of contributed Mrs. Jones stalled once she drove into the peril.2 lees in a situation of intersection. Mrs. Adams’ assertion that However, Mrs. was at with the Jones stalled odds we have heretofore held that Mrs. of the “after testimony requires Jones —the driver last clear chance also that had the in- was a proceeded car —that she across the situation had been created there [appellants tersection normal fashion after time when the defendant here] could, (Record 196.) plaintiff [appellees] stopping. at pretrial only negli- Here evidence of This witness was not identified defendant’s (Record 191) really rolling”— papers required gence the is- at was that the bus “was (Rec- subpoena opinion by lay person to attend trial suance of a an who was unable to witness, 359-60.) eye- speed mileage. sole ord at Another In- estimate the in terms deed, testimony by who not in either witness to collision was the trial court struck the vehicle, standing 12th north of was Street exceeding speed witness the bus was from the Adams house. intersection across (Record 387.) Assuming at testimo- limit. night and He did not see Mrs. Adams that ny really rolling enough her, ac- would have remembered had he seen exceeding permit to infer the bus was cording testimony, to his since he knew her. speed limit there was no evidence (Record 441-42.) Street, exceeding speed limit on 12th very light one-way north and had traffic at Parenthetically, I note that the federal court 289-90), (Record acci- the time caused the appeals Corp. here held in Gulf has Oil dent. Reed, U.S.App.D.C. 334 F.2d 960 way, Put must be evi- another some incorrectly permitted that a trial dence, Judge teaching Edgerton in under the go case to to the on the issue of Oil, might have oc- Gulf accident cause when evidence exceeding speed curred but for the bus negligence was that the defendant exceeded the presented limit. instant case. None at the limit time accident. *10 not, avoid the accident. The doctrine doctrine —that the defendant had the time [of applicable last clear is if to opportunity not avoid the accident. chance] emergency is so sudden there is no that passengers by That the in the auto driven collision, time to avoid the as the defendant injuries Mrs. severe Jones suffered as required is instantaneously.” not to act Id. highly regrettable. result of the collision is (emphasis added). at 483 judicial majority That the abandons its re- sponsibilities point, majority, by upholding jury

At this cita- verdicts without record, lacking tion to the where the evidence is so employs following ipse jurors only speculate regret- dixit: can is equally Washington Light table. Gas See Co. the instant case there is some evi- [l]n Jones, D.C.App., (1975) 332 A.2d dence from which the infer could (Harris, J., dissenting). by sounding measures such as

horn, braking swerving to im- avoid I respectfully dissent.4 pact, appellant could have avoided the collision .... BELSON, Judge, dissenting: Associate However, is no simply evidence of I Judge concur in Kern’s dissent. I add record the bus driver could have avoid- my view dissent’s correct conclu- ed the collision as soon he realized Mrs. was, appellee sion that driver as matter was going stop Jones to law, not entitled to recover reason Thus, sign.3 majority reduced to contributory negligence part on her asserting in effect that the jury may here collision, proximately caused the would not speculate that the driver of the bus had passengers affect the of her to recov- only time brake to and swerve also but not, Her contributory negligence er. could his blow horn such “means” here, imputed under the circumstances be the accident have could been avoided. passengers. her Ramsey, Peake v. D.C. suggested action, The majority’s evasive Mun.App., 43 A.2d 763 considering the reaction time and distances involved, require would clair- extraordinary

voyance dexterity. impor- But more

tantly, majority’s conjecture resort

highlights failure of the facts in this satisfy necessary prereq-

case to one of the for applying

uisites the last clear chance point up 3. The evidence on I take this was testimo- do not the various errors asserted driver, ny by Porch, by appellants during Mr. that he first to have occurred trial that allegedly saw car when he was 40 feet from the denied their to a fair trial since 292). (Record Assuming requiring intersection. an none raised issue en banc consid- it, should have at once realized she would be in eration and As I determination. understand path his and therefore action taken evasive the court as whole concerned about nothing propriety judge refusing judg- there is done of a enter show he have anything notwithstanding which would been in an have effective ment verdict inter- striking avoid the auto of Mrs. If he Jones. sectional collision case when it asserted limit, per proceeding at the 25 miles evidence hour, traveling per he was at almost 37 feet cause was insufficient. second.