The opinion of the court was delivered by: HOLTZOFF
In this case the jury returned a verdict in favor of the plaintiff for the sum of $75,000. The defendant moves for a new trial on two principal grounds. First, it is contended that the Court should not have instructed the jury on the doctrine of last clear chance, in that the doctrine was inapplicable under the evidence in this case. Second, it is contended that the verdict is excessive.
The basic facts in this case are simple. The defendant was driving an automobile southerly on Sixth Street, Northwest, in Washington, D.C. It was in the evening when it was dark. It was raining. The plaintiff was walking across Sixth Street at its intersection with G Street. He was proceeding from east to west along the southerly line or south of the southerly line of the intersection. The defendant's automobile struck the plaintiff.
The plaintiff contended that when he stepped off the sidewalk and started to walk across the light was green in his favor. On the other hand, the defendant contended that as he crossed the intersection the light was green in his favor. There was just a clear conflict as to who was proceeding against the red light. Obviously, if the plaintiff was proceeding on a green light, there would be no problem in this case. The defendant would be liable. The jury had a right to find, and it would have been reasonable for it to find that actually it was the plaintiff who walked across on the red light, because there was a disinterested witness who was driving a car easterly on G Street and who testified that he stopped for a red light at the Sixth Street intersection and while waiting for the light to turn he saw the plaintiff step off the sidewalk on the other side of Sixth Street and walk across Sixth Street against a red light.
It is argued, however, that the plaintiff did not reach a position of peril under which the doctrine of last clear chance was applicable until after the plaintiff passed the safety zone located in the center of Sixth Street. It is contended by defense counsel that the defendant had a right to assume that the plaintiff would stop in the safety zone, and that, therefore, the plaintiff was not in a position of peril from which he could not extricate himself.
The Court is of the opinion that it was for the jury to determine the point at which the position of peril began. The jury could well have found that from the moment the plaintiff stepped off the sidewalk against a red light, he was in a position of peril and was in that position even before he reached the center of the street.
The Court is of the opinion that it would have been entirely reasonable for the jury to conclude that when a motorist sees a pedestrian in his path walking across a red light, he should have watched that pedestrian and assumed that the pedestrian was in a position of peril, and that the motorist had no right to assume that the pedestrian would necessarily stop. This is a question for the jury.
The Court, on analyzing its instructions to the jury on the doctrine of the last clear chance, is unable to find any defect in the instruction. It might be well to make a brief reference to the authorities.
The leading case on the doctrine of the last clear chance in this jurisdiction is Dean v. Century Motors, Inc., 81 U.S.App.D.C. 9, 154 F.2d 201. At page 11, 154 F.2d at page 202, Judge Wilbur Miller explained this doctrine as follows:
"The doctrine presupposes a perilous situation created or existing through the negligence of both the plaintiff and the defendant, but assumes that there was a time after such negligence had occurred when the defendant could, and the plaintiff could not, by the use of means available, avoid the accident."
"It is not applicable if the emergency is so sudden that there is no time to avoid the collision, for the defendant is not required to act instantaneously."
This Court, in instructing the jury on the doctrine of the last clear chance used this last statement ...