and, specifically, that the leak was in a faulty coupling. The Government testimony further was to the effect that such a faulty leak creates seepage and that in time it may result in a sudden collapse of the surface. Apparently it is the theory of the Government that this is what happened in this case; there was a sudden collapse of the ground underneath the pavement as a result of the continuous leak. One of the Government witnesses, who was an expert plumber of long experience and who investigated the leak, testified that in his opinion it was caused by the fact that the joint had originally been improperly or badly installed by the contractor who had constructed it. The Court is of the opinion and concludes that the Government is liable, not on the basis of any notice of the existence of the hole, because no notice has been established, but on the theory that its contractor, for whose actions it is responsible, originally installed the pipe and the joint improperly and negligently, and that this negligence was the proximate cause of the accident which happened perhaps years later.
The Court may also call attention to the fact that this case is different in principle from Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524, which involved an accident in the vicinity surrounding the Jefferson Memorial. There the Court pointed out that the injured plaintiff went into an area that was not available to visitors and that therefore he took upon himself the risk of unconcealed dangers. In this instance the plaintiff was a licensee by invitation. She was in an area open to the public and, in fact, an area that the public was invited to use for the purpose of visiting the Washington Monument.
There remains the question of contributory negligence. The Government claims that the plaintiff should have seen the hole and should have avoided it. As learned counsel for the Government quite candidly concedes, a pedestrian is under no legal obligation to look out for defects in a public highway, especially those portions of the highway that are open to the public and are intended for the use of pedestrians. A pedestrian need not keep his eyes focused on the ground as he walks. In Howes v. District of Columbia, 2 App.D.C. 188, 193, it was said that a pedestrian "is not required to be on the lookout for pitfalls in that part of the public highway," referring to the portion of the sidewalk reserved for ordinary purposes of travel. So, too, in District of Columbia v. White, 48 App.D.C. 44, 49, it was said that the pedestrian "is not required to keep his eye glued upon the walk for the purpose of avoiding pitfalls." In the last mentioned case the Court distinguished between the pedestrian who walks upon the portion of the sidewalk that is intended for pedestrian use and a pedestrian who proceeds across a parking or a tree space or those portions of the sidewalk not specifically reserved for the use of travel.
The burden of proof on the issue of contributory negligence is on the defendant. The Court is of the opinion that contributory negligence has not been established by a fair preponderance of the evidence. The plaintiff had a right to assume that there were no dangerous holes in the pavement. She saw other people walking back and forth in safety. She had walked across to the Monument safely. She was on her way back, possibly deviated a few feet from the path that she had previously taken, and found herself in this hole.
The Court is of the opinion and concludes that the plaintiff is entitled to recover, and we shall now resume the trial on the issue of the amount of damages.
On the Issue of Damages
In this case it appears that the plaintiff sustained a sprain of her left ankle and a fracture of a bone in the left ankle. The fracture healed, practically completely. The sprain was healed. No doubt at the time of the injury and for some time thereafter the plaintiff suffered acute pain. The opinion of Dr. Talbott, called as a witness by the Government, is that there are no residual effects of the two injuries.
The plaintiff claims that she has developed arthritis in her left ankle as a result of the injury. Dr. Talbott expressed it as his opinion that such arthritis as she has in her left ankle is not the result of this injury but is a natural process such as affects most people as their age advances. He supports his opinion by an analysis of the condition of both ankles, finding that there is arthritis in each one practically to the same degee.
The Court will allow the following damages: as special damages, the bill of the Washington Sanitarium, $15; the bill of Clinch Valley Clinic Hospital, which includes fees charged by Dr. Henderson, $177.50; cab fare, $50; a total of $232.50. The Court will disallow payment for outside help made in 1964 because there is not sufficient proof that the help was necessitated by the accident. The Court will allow for pain and suffering $800, and will render judgment for a total of $1,032.50 in favor of the plaintiff as against the defendant.
A transcript of the Court's oral decisions, both on the issue of liability and on the issue of damages, will constitute the findings of fact and conclusions of law.
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