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February 10, 1954

GROBER et al.

The opinion of the court was delivered by: YOUNGDAHL

In this negligence action the jury returned a verdict in favor of Jack Grober for $ 48,000 and for his wife, Ethel Grober, in the sum of $ 4,000. Ethel Grober's award is for loss of consortium. Plaintiffs asserted that defendants Silver Top Cab Company (hereinafter called the Cab Company) and Capital Transit Company (hereinafter called the Transit Company) were negligent and that their negligence proximately concurred in causing severe injuries to plaintiff Jack Grober, a passenger in a taxicab when a streetcar of Transit Company collided with a taxicab of Cab Company in an intersection accident.

In addition to the claim of plaintiffs Grober against the two defendants, the jury had before it the third party claim of Cab Company against Transit Company for property damage to its cab because of the alleged negligence of Transit Company, and the claim of Walter M. Riley, driver of the taxicab, against Transit Company for damages for personal injuries claimed to have been sustained proximately as the result of the negligence of Transit Company. Riley's claim was asserted in a separate action but was consolidated for trial with the Grober case.

 The jury found for Transit Company in connection with the claims of Cab Company and Riley against it.

 Transit Company and Riley have moved for a new trial. The Cab Company has moved for judgment notwithstanding the verdict or, in the alternative, for a new trial.

 Transit Company's motion will be considered first.

 Transit Company asserts error in the Court's ruling in sustaining an objection to a question submitted to Transit Company's expert as to whether the stop made by the streetcar after contact with the taxicab was a good stop, whereas it allowed the expert to answer a question on cross-examination as to whether the distance which the taxicab was pushed down the track was an indication of the streetcar's speed at the point of collision. Besides the fact that the scope of questions allowed on cross-examination is broader than that allowed on direct examination, it is clear that if the Court permitted an answer to the first question it would have been a conclusion, whereas permitting the expert to answer the second question was only allowing him to testify as to information within his superior knowledge. It is true that experts are allowed to give their conclusions where the ability to draw a conclusion from the facts stated depends on professional or scientific training not within the range of ordinary training or intelligence, 20 Am.Jur., Evidence § 777. However, in this case, prior to the disputed question, the Court permitted the expert to testify how far a streetcar will travel when put into emergency at various speeds as well as how far the streetcar in this case actually went. These facts being before the jury, the conclusion as to whether the stop was good or not was a subject about which the jury was as able to judge as was the witness since it was a matter for common judgment. Kenney v. Washington Properties, Inc., 1942, 76 U.S.App.D.C. 43, 45, 128 F.2d 612. The testimony was excluded not because there was any fault to find with the witness or the sufficiency of his knowledge, but rather because his testimony was unnecessary. All the facts were before the jury to enable it to determine what kind of a stop was made. (7 Wigmore, Evidence § 1918, (1940)). In any event no possible prejudice resulted to Transit Company from this exclusion.

 As a further ground for a new trial, Transit Company complains of the Court's charge in two respects. First, defendant picks three words out of the context of the Court's charge on the ordinary care required of the motorman and contends that these three words requiring the motorman to 'meet unforeseen emergencies' erroneously stated the standard of care required under the law. The jury was charged that the Transit Company, acting through its motorman, 'was required to exercise that degree of care that an ordinary, prudent person would have used or exercised under the same or similar circumstances, considering the conditions of the road, the weather conditions, and other conditions then prevailing. It was the motorman's duty to watch the road and keep the streetcar reasonably under proper control and meet unforeseen emergencies.' (Page 15, Transcript of Charge).

 Transit Company contends that charging it was the motorman's duty to 'meet unforeseen emergencies' was imposing the liability of an insurer on the Transit Company. I do not believe this contention is well taken. One charged with ordinary care is under an obligation to apply such care to all situations -- foreseen and unforeseen. One is not excused from all errors of judgment in an emergency by the fact that he is compelled to act immediately upon the sudden happening of an event. The fact that there was an emergency was only one important factor to be considered in determining whether there was negligence under the particular circumstances of the case. All emergencies are unforeseen. In essence the charge was that it was the motorman's duty to meet emergencies. This is the obligation of every man in day to day activity. See, Fruehauf Trailer Co. v. Gusewelle, 8 Cir., 1951, 190 F.2d 248, 251, certiorari denied 342 U.S. 866, 72 S. Ct. 105, 96 L. Ed. 651; Peck v. U.S., 10 Cir., 1949, 172 F.2d 336, 338; 79 A.L.R. 127. When the challenged words are considered in light of the entire charge on ordinary care, it is clear that the motorman had only to act reasonably when faced with the emergency with which he was confronted. Certainly a charge must be viewed as a whole rather than dividing it into isolated segments. Hecht Co. v. Jacobsen, 1950, 86 U.S.App.D.C. 81, 84, 180 F.2d 13.

 Transit Company next contends that the Court committed error in charging the jury that it was the duty of the motorman to maintain a proper lookout and to see what was there to be seen. (Page 15, Transcript of Charge). It is not claimed that this is not the law, but only that the taxi driver should have been charged with the same duty. It must be borne in mind that the Cab Company's contention was that the taxicab was stopped on the tracks when the streetcar struck it. The charge referred to was given as part of the general charge as to the motorman's duty, and before the general charge as to the taxicab driver's duty under the highest degree of care. The Court thus carefully endeavored to balance in its charge the respective duties of the motorman and taxicab driver. An objective reading of the entire charge indicates that the Court's charge submitted the case objectively without stressing one claim over the other. Moreover, when charging on the taxicab driver's duty, the Court included that the jury should consider not only what the taxicab driver did after he was faced with the emergency but how he happened to become involved in the emergency, as well as giving consideration to whether the circumstances were such that by proper care and foresight the driver should have apprehended the danger of a collision in making the turn. Where it appears on examination of the entire charge that the jury has been fairly and adequately instructed, the requirements of law are satisfied. Cohen v. Evening Star Newspaper Co., 1940, 72 App.D.C. 258, 259, 113 F.2d 523. Though the words used were not exactly the same, the charge in no way imposed duties on the motorman which were not imposed on the taxicab driver.

 Although no written requests for instructions were made by the Transit Company, all its oral requests were substantially given by the Court in its charge and only a charge as to last clear chance was included over Transit Company's objection. The objection of the Transit Company as to the inclusion of the charge on last clear chance is no longer relevant as the doctrine was not involved in the Grober case and Transit Company has been given a verdict in the Cab Company and Riley claims in which it was involved.

 Because of the rather lengthy charge required by the consolidation of several cases and the great number of issues in one trial, it would seem that Transit Company is grasping at straws in endeavoring to find some basis for asserting a right to a new trial, when the only fault it can find with the charge is a few words taken out of context. An objective reading of the charge as a whole will indicate that the various claims were presented in a fair and balanced manner.

 Another ground which Transit Company urges is that the verdict accepted was not the true verdict of the jury. The complaint is that the jury rendered a different verdict than that which was accepted and that, in any case, the verdict accepted was the result of unresolved confusion. The following happened:

 When the jury first returned, the foreman announced that it found for Jack Grober and Ethel Grober against both defendants in the sum of $ 48,000 and $ 4,000 respectively, and for the Transit Company in the claims of Walter M. Riley and the Cab Company against it. On inquiry by the clerk as to whether that was the verdict of each of them, a juror rose and said that the foreman had misinterpreted the jury's 'summation of the case'. The Court said next, 'Do you mean that these verdicts as reported by the foreman are not the verdicts of each of you?'. The juror answered, 'That is right.' Without further inquiry the Court said, 'I am going to send you back into the jury room for further consideration until you can iron that situation out and come to an agreement on what your verdicts are.' (Page 9, Transcript of Charge)

 When the jury returned to the courtroom the following occurred:

 'The Clerk: Mr. Foreman, has the jury agreed upon its verdict?

 'The Foreman: Yes, we have.

 'The Clerk: In the case of Jack and Ethel Grober v. The Capital Transit Company and the silver Top Cab Company, how do you find in the case of the plaintiff Jack Grober v. the Capital Transit Company?

 'The Foreman: We have found in favor of the Plaintiff.

 'The Clerk: In what amount?

 'The Foreman: In the amount of $ 24,000 for Mr. Grober; in the amount of $ 2,000 for Mrs. Grober.

 'The Clerk: How do you find in the case of the plaintiff Ethel K. Grober v. The Capital Transit Company?

 'The Foreman: We find in favor of the plaintiff.

 'The Clerk: In what amount?

 'The Foreman: In the amount of $ 2,000.

 'The Clerk: How do you find in the case of the plaintiff Jack Grober v. The Silver Top Cab Company?

 'The Foreman: We find in favor of the plaintiff.

 'The Clerk: In what amount?

 'The Foreman: In the amount of $ 24,000.

 'The Clerk: How do you find in the case of the plaintiff Ethel K. Grober v. The ...

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