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March 25, 1963

James G. PIPER, Plaintiff,
L. Watson ANDREWS, Jr., et al., Defendants

The opinion of the court was delivered by: YOUNGDAHL

The plaintiff recovered a verdict in an action for negligence, and the defendant *fn1" has moved for judgment notwithstanding the verdict, and in the alternative for a new trial. The grounds for defendant's motion are that the last clear chance doctrine and a portion of the Traffic and Motor Vehicle Regulations for the District of Columbia should not have been submitted to the jury, and that the Court improperly denied the defendant's motion for a mistrial after the plaintiff's attorney made certain statements concerning damages.

1. As far as the last clear chance is concerned, the Court instructed the jury on the elements of this doctrine in the language specifically approved in Mathews v. Lindsay, 108 U.S.App.D.C. 292, 293, 281 F.2d 927, 928 (1960):

 There was ample evidence justifying the submission of the last clear chance doctrine, as thus formulated, to the jury. Evidence was introduced to show that the plaintiff was injured as he attempted to walk across Rock Creek and Potomac Parkway between the K Street and Pennsylvania Avenue overpasses on his way to work just before 7:00 a.m. on September 21, 1956. The plaintiff himself testified that he was walking along the east side of the parkway on a bridge, along a pedestrian walkway separated from the roadway by a steel guard rail (called a 'parapet' in the testimony); that as he approached the end of the bridge, he looked back over his left shoulder to see if any cars were proceeding north (that is, on his side of the parkway) and that he saw three, which turned off before crossing this bridge; that he looked to his other side and saw a group of cars proceeding south; and that after they passed him, he turned to step into the roadway at the end of the 'parapet' to cross the parkway. He remembered nothing further until he was being placed in an ambulance, after admittedly having been struck by defendant's car proceeding north. *fn2" Thus as far as the plaintiff is concerned, there was evidence from which a jury could reasonably have concluded that the plaintiff was in a position of danger caused by his own negligence and that he was oblivious of the danger.

 As far as the defendant is concerned, one witness testified that he saw the defendant's car, a short distance south of the place where the accident occurred, 'whiz by' going north; that the defendant's car was going 'much faster' than the only other cars present at that moment, which were going south; and that he estimated the defendant's speed at 30 to 35 miles per hour. An expert in estimating traffic speeds and distances placed the defendant's minimum speed at 32 1/2 miles per hour based upon skid marks. There was also testimony that the parkway in the area between the two overpasses had several sharp curves. In addition, there was testimony that the accident occurred shortly before 7:00 a.m., at which time the parkway would become one way only, with all cars proceeding south, and that southbound traffic was already straying over the white line into one of the northbound lanes, creating a special reason for the defendant to hurry. Thus there was evidence from which the jury could reasonably have concluded that the defendant was negligent in operating his car at an unreasonable speed. *fn3"

 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. *fn4" 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. *fn5" 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. *fn6" 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. *fn7"

 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. *fn8"

 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.

 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 ...

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