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January 30, 1963

Pauline NORDSTROM and Charles Nordstrom, Plaintiffs,
DISTRICT OF COLUMBIA and Sinclair Refining Company, Defendants

The opinion of the court was delivered by: HOLTZOFF

The following facts are uncontroverted. The plaintiff Pauline Nordstrom was walking in a northerly direction on the sidewalk in the 200 block of 5th Street, Northeast, in Washington, D.C. A public elementary school of the District of Columbia, known as Peabody School, is located in that block. A driveway leading to the rear entrance of the school building was cut across the sidewalk. The driveway had a slight incline in order to merge into the street pavement at the curb. When the female plaintiff reached this point, she found her progress blocked by a truck of the defendant Sinclair Refining Company, which had been backed by its driver into the driveway and parked in a manner to occupy the entire width of the sidewalk, except for a distance of two to three feet adjoining the curb. The truck was delivering oil to a private dwelling which adjoined the school. In order to proceed the plaintiff found it necessary to walk around the front of the truck, and had to step down to the part of the driveway immediately adjacent to the curb. She stumbled and fell over a hole in the driveway, sustaining the injuries of which she complains. The undisputed testimony is that the hole was one to one-and-a-half inches deep and three or four inches wide, and had existed for several years.

 The District of Columbia was deemed liable on the ground that it was guilty of a breach of its duty to keep the public highways of the city in a reasonably safe condition, and failed to repair a substantial defect after having had constructive notice, District of Columbia v. Woodbury, 136 U.S. 450, 463, 10 S. Ct. 990, 34 L. Ed. 472; Elliott v. District of Columbia, 82 U.S.App.D.C. 64, 160 F.2d 386. In this instance, the hole in the sidewalk was not a mere minor depression or a minute deviation from the level of the street, but manifestly constituted a serious danger and hazard. The existence of this condition for several years was much more than sufficient to give constructive notice to the District of Columbia. Ordinarily, several months, or at times even a few weeks, would be enough for this purpose.

 The co-defendant, Sinclair Refining Company, was held liable on the following basis. Its truck was parked on the sidewalk in violation of traffic regulations. This unlawful obstruction interfered with the passage of pedestrians and compelled them to go around the truck in order to pass. While so doing the pedestrian was injured by a fall on a defective part of the pavement, something that would not have happened if she had been able to continue walking along her direct route. Consequently the creation of the obstruction as a result of the illegal parking, constituted one of the proximate causes of the pedestrian's injuries. Hartford v. Silverman, 109 Cal.App. 587, 293 P. 660; Shafir v. Sieben (Mo.), 233 S.W. 419, 424, 17 A.L.R. 637; Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 102 P.2d 422, 429; Garibaldi et al. v. O'Connor, 210 Ill. 284, 71 N.E. 379, 66 L.R.A. 73. *fn1"

 In discussing the subject of indemnity, it seems desirable to classify joint tort-feasors into several categories. First, in some instances joint tort-feasors commit one act of negligence in concert. Naturally, no right of indemnity exists as among them. The second class comprises situations in which the joint tort-feasors are guilty of separate tortious acts, either simultaneously or in chronological sequence, the several acts in combination constituting proximate causes and leading to the plaintiff's injuries. This class may, in turn, be subdivided into two groups: cases in which the negligence of each tort-feasor equally contributes to the final result, where also there is no basis or reason for indemnity; and, second, cases in which the negligence of one tort-feasor is primary or active, and that of the other is secondary or passive. It has been held that under such circumstances the latter is entitled to indemnity from the former.

 This doctrine was formulated as follows in McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 328, 107 N.E.2d 463, 471:

 'Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act.'

 To the same effect are Coates v. Potomac Electric Power Co. (D.C.), 96 F.Supp. 1019; and Aetna Casualty and Surety Co. v. Porter (D.C.), 181 F.Supp. 81.

 Still a third category comprehends situations in which one person vicariously answers for the negligence of another. Common instances of this type are cases of a master responding for the negligence of his servant on the principle of respondent superior, and of a principal responsible for the negligence of his agent. In such cases indemnity is allowed in favor of the former against the latter. In cases of municipalities, if a defect in a highway is actually caused by the negligence or act of some other party who is permitted or licensed to make an excavation or to maintain some equipment in the highway, and if the municipality is held liable to a person who is injured as a result, it is entitled to indemnity from the other party, Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 327-328, 16 S. Ct. 564, 40 L. Ed. 712; General Heating Engineering Co. v. District of Columbia, 112 U.S.App.D.C. 225, 301 F.2d 549.

 In Warner v. Capital Transit Co. (D.C.), 162 F.Supp. 253, it was held that there could be no indemnity as between two joint tort-feasors if each was guilty of active negligence, irrespective of the fact that the degree of negligence of one might have been greater than that of the other.

 A somewhat similar situation was presented in Union Stock Yds. Co. of Omaha v. Chicago, B. & Q.R.R. Co., 196 U.S. 217, 25 S. Ct. 226, 49 L. Ed. 453. In that case a shipper of freight delivered a defective refrigerator car to a railroad. The latter, in turn, turned over the defective car to a stockyards terminal company. An employee of the latter was injured by reason of the defect in the car, and recovered damages from his employer on the ground that the accident was caused by the employer's failure to inspect the car properly. The latter, in turn, sued the railroad company for indemnity on the theory that the railroad was also guilty of failure to inspect the car and had the first opportunity to do so. The Court did not allow indemnity, since each party had been guilty of a like neglect of duty, and the fact that the duty of inspection had been imposed first on the railroad company was immaterial.

 It is argued in behalf of the District of Columbia that 'but for' the negligence of Sinclair, which compelled the plaintiff to walk around the front of the truck, the plaintiff would not have been injured. This statement is correct. The converse, however, is equally true. 'But for' the negligence of the District of Columbia in failing to repair the defect in the street, the plaintiff likewise would not have been injured. Obviously, each of the two defendants was guilty of active negligence. It is of no moment that the negligence of Sinclair occurred subsequently ...

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