was other evidence showing specifically that the defendant, by the exercise of reasonable care, would have been able to avoid striking the plaintiff after the time when the defendant was aware or should have been aware of the plaintiff's danger and inability to extricate himself therefrom.
The defendant testified that he had driven over this parkway at approximately this time of the morning every weekday for eight or nine months immediately preceding the accident, and that he had never during that time seen any individuals cross the parkway from the north end of the 'parapet' to the west side of the road. The plaintiff, in rebuttal, testified that 'quite a number' of individuals -- at least 15 or 18 -- walked across the parkway just before and just after 7:00 a.m. every day, on their way to work on the other side. Implicit in the jury verdict is the finding of fact that the defendant was aware, or should have been aware, that people in the plaintiff's position crossed the parkway at that point and at that time in the morning, and that a reasonable person would therefore have proceeded with special caution. This conclusion is bolstered by uncontradicted evidence that the plaintiff would have been seen by an attentive driver of an automobile as he walked along the bridge, next to the parkway. The testimony of the defendant, however, was that he was completely unaware of the plaintiff until the impact occurred.
Thus from the evidence the jury could reasonably have concluded not only that the defendant either knew or should have known that individuals in the plaintiff's position crossed the parkway at that point and at that hour, but also that the defendant should have exercised additional care in anticipation that the plaintiff himself might well try to cross the parkway. Thus the evidence justified the jury in concluding that if the defendant had exercised the care required of a reasonable driver in his position, he would have been aware of plaintiff's danger and obliviousness to such danger in time to sound his horn and to bring his vehicle to a stop before striking the plaintiff. See Capital Transit Co. v. Garcia, 90 U.S.App.D.C. 168, 194 F.2d 162 (1952).
In addition to the above testimony -- which alone would have justified an instruction on last clear chance -- the plaintiff introduced the testimony of an expert in traffic speeds and distances.
The defendant objects to the opinion expressed by such expert to the effect that two and a half seconds elapsed between the moment when the plaintiff left the curb and the moment when he was hit, and that in this time the car could have been brought to a stop before striking the plaintiff. The defendant argues that such a conclusion was improper, because it was based upon two assumptions which were unsupported by the evidence: that the plaintiff was walking at the average speed of pedestrians generally, which the expert estimated at four feet per second; and that the plaintiff was struck in the center of the defendant's car, midway between the two front headlights.
There was evidence to support the latter assumption, because a blue mark was discovered upon the car hood near the center, which the jury could reasonably have inferred was the mark left by a small blue box which the plaintiff had been carrying. And although the plaintiff's total absence of memory prevents there being any direct evidence to indicate that the plaintiff was beginning to walk across the parkway rather than to run across, the jury could reasonably assume that the plaintiff did the normal thing -- walk -- in the absence of any evidence to the contrary. He testified that he was 'walking' across the bridge just before turning to step onto the parkway. And when the plaintiff testified on rebuttal, he spoke of 'quite a number of others' who 'walked across' every day at that place; the reasonable inference from this testimony is that the plaintiff himself also usually walked across and that he was following such usual practice on the morning of the accident. The plaintiff's lapse of memory, and the absence of any eyewitnesses, makes any additional evidence on this point impossible to obtain. The inference that the plaintiff was walking is, therefore, simply a reasonable conclusion from all the available facts; such inference is not the result of the kind of speculation on scanty evidence, where more could have been produced, which was held improper in Pennsylvania R.R. Co. v. Pomeroy, 99 U.S.App.D.C. 272, 277-280, 239 F.2d 435 (1956), upon which the defendant rests his argument.
Thus the Court concludes that the last clear chance instruction was properly given to the jury, and that there was substantial evidence on which a reasonable jury could have concluded that the plaintiff proved by a fair preponderance of the evidence each of the four elements of last clear chance.
2. As far as the disputed phrase from the Traffic and Motor Vehicle Regulations of the District of Columbia is concerned, the defendant argues that the Court erred in admitting in evidence and instructing the jury, over defendant's objection, that portion of section 22(c) of such regulations which requires an appropriate reduction in speed when approaching a curve or when traveling upon any winding roadway.
The defendant contends that because the record indicated that there was a curve immediately north of the bridge, the regulation requiring a reduced speed was not designed to offer protection to any person injured trying to cross the parkway before the beginning of the curve. The defendant argues that the curve had not yet presented a hazard with respect to this plaintiff, and that the plaintiff cannot therefore claim the protection of that portion of the regulation dealing with curves.
The Court does not agree. A regulation requiring an appropriate reduced speed when approaching and going around a curve is designed as much for the protection of those on the near side of the curve as it is for those on the far side, because the very existence of the curve may restrict the ability of a driver to avoid striking another vehicle or a pedestrian by swerving to one side or the other. Oncoming traffic is as hazardous in this respect to a vehicle approaching a curve as it is to a vehicle that has just passed the curve. Indeed, in the present case the combination of the curve and the southbound traffic, some of it straying over into the lanes that were legally northbound until 7:00 a.m., may well have been precisely the factors which combined with the defendant's negligence to cause the accident. The court therefore believes it was proper to let the jury consider the regulation dealing with curves and winding roadways along with all the other evidence in the case in deciding whether the defendant had been negligent.
3. As far as certain statements made by plaintiff's attorney concerning damages are concerned, the defendant argues that the Court should have granted a mistrial when the plaintiff's attorney said to the jury in his closing argument that the plaintiff's special damages were not larger because of the plaintiff's impecunious circumstances, and that the attorney believed that the evidence justified a total verdict of $ 100,000.
The Court does not believe that the defendant was prejudiced by these remarks of the plaintiff's attorney. Immediately thereafter, the Court warned the jury to disregard the above remarks completely. Later, in its charge, the Court instructed the jury that the arguments and opinions of counsel do not constitute evidence. That such warning of the Court was heeded by the jury is indicated by the fact that the jury returned a verdict for $ 20,000, a modest sum when one considers that the plaintiff was out of work for an entire year and that his special damages alone, not including any amount for pain and suffering or for permanent injuries, totalled over $ 10,000. Therefore, even though this Court believes that the statements of plaintiff's attorney were improper,
the defendant was in no way prejudiced by such statements, and for this reason the motion for a mistrial was denied.
The defendant's motion for judgment notwithstanding the verdict, and in the alternative for a new trial, will therefore be denied.