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04/09/53 Peigh Et Al. v. Baltimore & O.R. Co.

April 9, 1953




Before CLARK, WILBUR K. MILLER and WASHINGTON, Circuit Judges.



WASHINGTON, Circuit Judge.

This is a negligence case, arising out of the collision of a moving automobile occupied by plaintiffs-appellants with a boxcar standing parked on defendant-appellee's railroad tracks running along K Street, N.W., in the industrial part of Georgetown in the District of Columbia. The issue raised on appeal is whether the trial court erred in directing a verdict for defendant, after the evidence for both sides was in. It held that as a matter of law plaintiffs' recovery was doubly barred - by absence of proof of defendant's negligence and by plaintiffs' own contributory negligence.

In such a case, the evidence must be considered in the light most favorable to plaintiffs-appellants. Higashi v. Shifflett, 1952, 90 U.S.App.D.C. 302, 195 F.2d 784. So viewed, the main facts are these: The boxcar had been placed for unloading on a track in front of its consignee's place of business on Friday, July 30, 1948, at an hour not specified. The track ran down the middle of K Street, an east-west street approximately 56 feet wide. *fn1 The boxcar was still there, loaded, on the following evening, at about 9:30 P.M., when the accident occurred. *fn2 The night was "rainy," "misty," "dark": visibility was poor, even though there was a street light 100 feet east of the boxcar. Appellants had drunk small quantities of beer during the day. The driver, Griffin, saw the railroad tracks as he drove west along K Street. He had seen them before and he knew they were used in daytime for moving railroad cars around, but he did not know cars were ever parked on them. The space between the tracks was paved like the rest of the street. Griffin was driving in or near the middle of the street, on the railroad tracks, "possibly" because of construction work on a freeway being built overhead. His speed was 20 or 25 miles an hour. He first saw the loaded boxcar when he was 30 or 35 feet from it. There was ample room - about 13 feet - to pass it on the right, but he believed, because of the pilings and other indications of construction work by the side of the road, that the road was impassable to the right; he therefore unsuccessfully attempted to pass the boxcar on its left. He applied his brakes "almost immediately" when he saw it, but apparently he skidded: the tracks "held" him, and his brakes took only "some" effect. The collision caused serious injuries to the appellants, and extensive damage to the automobile. Appellants offered some testimony to show that the boxcar was unlighted; appellee offered substantial evidence that it was equipped with a reflector and a burning red oil-lantern.

The first question is: Was there sufficient evidence of negligence on the part of the railroad to entitle plaintiffs-appellants to go to the jury? As to this, appellants rely on a Police Regulation which provides that railroad cars shall not "be parked or stored on a street for an unreasonable time." *fn3 They contend that the regulation was violated, and that this constituted negligence per se, within the doctrine of such cases as Ross v. Hartman, 1943, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied 1944, 321 U.S. 790, 64 S. Ct. 790, 88 L. Ed. 1080.

We think the trial court was correct in putting this contention out of view. Whether the regulation was in fact violated we do not now decide, for the reason that the doctrine of negligence per se is not in our opinion applicable here. Violation of a regulation does not, ipso facto, give rise to civil liability unless the regulation is one designed to prevent the sort of harm to the individual relying on it which has in fact occurred. Restatement of Torts ยง 286(a); Ross v. Hartman, supra; Exner v. Sherman Power Const. Co., 2 Cir., 1931, 54 F.2d 510, 80 A.L.R. 686; cf. Union Pacific Ry. Co. v. McDonald, 1894, 152 U.S. 262, 283, 14 S. Ct. 619, 38 L. Ed. 434. Further, the doctrine of negligence per se is one which must be applied cautiously, with an eye to essential fairness. If its use in a particular case tends to produce liability based not on real fault, or any real departure from standards of prudent conduct, but only on a technicality, the courts are justifiably reluctant to apply it. *fn4 In general, the guiding principle is whether its application is necessary to effectuate the legislative purpose. *fn5 In our view, the present case does not fall within that category. We are clear that the regulation here involved was promulgated in the interests of expediting traffic and encouraging commerce in the city. The safety of passing motorists was not its goal, at least in any sense which would make applicable the doctrine of negligence per se. It appears under the heading "Miscellaneous Regulations," and is not to be found in the Vehicle and Traffic Regulations of the District There is no absolute prohibition contained in the regulation: parking is in effect permitted, so long as it is for a reasonable time only. How reasonableness is to be measured does not appear: no doubt the railroad's problems are to be considered along with those of neighboring property owners and other interested parties. At any rate it is not clear that reasonableness is to be measured primarily by safety considerations, as is true with the ordinary traffic regulation. *fn6 Under these circumstances, we think that the doctrine of negligence per se does not apply.

The appellee railroad, for its part, points to its authority, by act of Congress, to "maintain single or double track railways . . . and to run cars on said tracks" on K Street. Act of Sept. 26, 1888, 25 Stat. 492. But this statutory authority to use the street does not exonerate the railroad from the consequences of acts of negligence. *fn7 Nor would express authority to park boxcars on the street have any such exonerating effect, even assuming that the Police Regulation discussed above could be regarded as such authority. If defendant parks its cars on the street without authority, it may commit a nuisance. *fn8 But authority or lack of authority is not conclusive of the issue of negligence.

On that issue, the factor which appears of most significance in this case is the character and quality of the warning given plaintiffs. On the present record, it is not clear that the rear of the boxcar was so lighted as to give sufficient warning to motorists.Cases in which unlighted vehicles are parked on highways at night "usually present issues of fact for a jury's determination." Harkins v. Somerset Bus Co., 1932, 308 Pa. 109, 110, 162 A. 163, 164; see Annotation, 104 A.L.R. 485, 512. And even if the boxcar "contained a light or lights on the rear as contended, it was still a jury question as to whether those in charge . . . gave such warning to approaching vehicles as would free defendant from a charge of negligence." Miller v. Advance Transp. Co., 7 Cir., 1942, 126 F.2d 442, 446. Here all are agreed that visibility was very poor on the night of the accident. Numerous witnesses testified that they saw no light on the boxcar. And a policeman investigating the accident, who testified he saw the light on the boxcar, apparently failed to see it until another person hunting for it pointed it out to him. The jury should have been permitted to consider whether the defendant railroad used reasonable care to warn plaintiffs-appellants of the presence of the boxcar on the tracks. Cf. Kazan v. Wilkes-Barre Ry. Corp., 1943, 347 Pa. 232, 32 A.2d 32. The case was thus one which should have been submitted to the jury on the issue of defendant's negligence.

We are brought, then, to the issue of contributory negligence. There was substantial evidence of the driver's lack of due care. But, taking the evidence in the light most favorable to him, we have concluded that the trial court erred in finding him negligent as a matter of law. Reasonable jurors could certainly find that he was not drunk. We think they could also find that his speed was not excessive under the circumstances, and that he was justified by the construction work in driving near the middle of the street and in trying to pass the boxcar on the left. His awareness of the existence of the railroad tracks is at most simply one element to be considered on these points. It has been held that "A railroad track occupying a street used constantly by vehicular traffic in an industrial district is not of itself a warning of danger." Watson Bros. Transp. Co. v. Chicago, St. P.M. & O. Ry. Co., 1947, 147 Neb. 880, 25 N.W.2d 396, 399.Certainly the driver was under no duty to avoid using the portion of the street where the tracks were laid. Cromeenes v. San Pedro, L.A. & S.L.R. Co., 1910, 37 Utah 475, 109 P. 10. Neither does the mere fact of hitting a parked boxcar establish contributory negligence, where it was parked lengthwise in the street, under conditions of poor visibility and in the neighborhood of overhead construction work likely to be distracting to passing motorists.Cases holding otherwise with respect to boxcars blocking crossings are distinguishable on their facts; nor is the usual rule in such cases applied where "special circumstances," like those present here, make it unreasonable. See Annotation, 161 A.L.R. 111, 148.It cannot "be said that the failure to see an unlighted object within the range of one's headlights is negligence per se." Harper v. Northwestern Pac. R. Co., 1939, 34 Cal.App.2d 451, 93 P.2d 821, 824. A plaintiff is "not bound to anticipate that the defendant [will] negligently permit its car to stand unlighted in the middle of a highway." Kazan v. Wilkes-Barre Ry. Corp., supra

Appellee invokes certain Traffic and Motor Vehicle Regulations for the District of Columbia, contending that the driver violated them, and was thus guilty of contributory negligence as a matter of law. Section 22(b) prohibits driving at an unreasonable and imprudent speed under the circumstances. Section 23(a) requires drivers to drive as closely as practicable to the right-hand side of the road. These are safety regulations, to which the negligence per se doctrine is applicable, on the basis outlined earlier in this opinion. At the same time, the proper functioning of the jury system must be preserved. Both these regulations hinge on reasonableness, as determined in the light of all the facts: they do not attempt to set up precise and rigid standards. The question whether such a regulation has been violated is thus one which is ordinarily appropriate for the consideration of the jury in determining an issue of negligence, primary or contributory. In this situation, the application of the negligence per se doctrine still leaves the fundamental issue of negligence with the jury. The judge is no more able to direct a verdict by reason of the claimed violation of such a regulation than he would be in the absence of the regulation. *fn9

The driver's contributory negligence, if any, does not bar the other appellants. Unless a passenger himself fails to do something he reasonably might have been expected to do to avert an accident, he is ordinarily entitled to recover from a negligent defendant, regardless of the negligence of his driver. Certainly the passengers here cannot be charged with contributory negligence as a matter of law if the driver cannot. The question should have gone to the jury. See Miller v. Advance Transp. Co. (supra).

We do not wish to underestimate or deprecate the weighty reasons which led the trial judge to direct a verdict for the defendant. It is with real reluctance that we have reached the conclusion that he was in error. But we think it well to add that in a case of this kind, if there is room for a difference of opinion, the wise course is for the trial judge to allow the case to go to the jury. If a verdict is deemed by the court to be contrary to the evidence, judgment may be entered non obstante ...

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