turned south on Second Street and have avoided the accident; rather the evidence showed that he was oblivious to his peril, otherwise he would have turned south and avoided the accident. Defendant, if plaintiff's testimony be believed, as it evidently was, in the exercise of reasonable care should have seen plaintiff's automobile in a position of peril at the time he passed the "stop" sign. He also, in the exercise of reasonable care, should have observed plaintiff's obliviousness to his peril in not deviating from his course. At that time, when he was aware of plaintiff's peril and obliviousness, or in the exercise of reasonable care, should have been aware of plaintiff's peril and obliviousness, he was able in the exercise of reasonable care to turn his automobile to one side or slow down and avoid striking defendant. Independence Avenue was 38 feet wide and the "stop" sign was 15 feet north of the north curb. The collision occurred on the south side of Independence Avenue. The foregoing is based largely on plaintiff's testimony which was disputed. Being disputed, it was necessary to submit the question to the jury under appropriate instructions as to the last clear chance doctrine as all of the elements of this doctrine appear to be present. Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380; Stewart et al. v. Capital Transit Co., 70 App.D.C. 346, 108 F.2d 1; Regal Cleaners & Dyers v. Pessagno, 71 App.D.C. 199, 109 F.2d 453.
As to plaintiff's prayers Nos. 2, 10 and 12, which were granted, they appear to state the law. As to Prayer No. 2, it should be pointed out that the court in its general charge to the jury instructed them as follows: "The burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence that defendant in the operation of his automobile was guilty of one or more of the alleged acts of negligence and that such act or acts as are found by you to have occurred constituted negligence and that such negligence was the direct and proximate cause of the collision and the resulting injuries and damages, if any to plaintiff and his automobile." See Danzansky v. Zimbolist, 70 App.D.C. 234, 105 F.2d 457.
As to the point that the verdict is excessive, I am unable to find that it is so excessive as to justify a new trial or a new trial unless a remittitur be filed. There was nothing in the trial of the case indicating that the verdict was the result of passion or prejudice.
There appear to be no sound bases for the remaining contentions of the defendant in support of his motion for a new trial.
Accordingly, the motion for a new trial is denied.
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