The opinion of the court was delivered by: MCLAUGHLIN
CHARLES F. McLAUGHLIN, Senior District Judge.
This matter is before the Court on the Motion of the Defendant, District of Columbia, for Judgment Notwithstanding the Verdict, or in the Alternative for a New Trial.
The basic grounds urged in support of the Motion are as follows: (1) As a matter of law, the United States and not the District of Columbia had the duty to maintain the sidewalk in question in a reasonably safe condition; (2) assuming arguendo that the District had the duty to maintain the sidewalk, there was no showing that they had either actual or constructive notice of the defect; (3) the Court erred in not giving further instructions on contributory negligence proffered by the District of Columbia; and (4) the closing argument of Plaintiff's counsel was so prejudicial as to require a New Trial.
For the reasons which follow, the Court is of the opinion that none of the grounds urged by the District require either the entering of Judgment Notwithstanding the Verdict or the granting of a New Trial, and the Motion is therefore denied in both respects.
Grounds two through four urged by the District require no elaborate detail in disposing. The Court concludes that on the basis of the record adduced at trial the evidence is sufficient to raise a jury question as to whether the District had actual or constructive notice of the defective condition of the sidewalk. None of the cases cited by the District on this proposition would justify a different conclusion. Indeed, the Supreme Court case of District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472 (1890), states on the question of notice, "Every such case must be determined by its pecular circumstances."
The question of notice is a factual one and the Court is satisfied that the Plaintiff in the instant case carried its burden on this question.
In the court's opinion its instructions on contributory negligence were adequate and sufficiently detailed to apprise the jury that they should find the Female Plaintiff to be derelict concerning her own safety she would be precluded from recovery. The proffers of the District of Columbia were cumulative in effect and added nothing new which the Court's own instructions did not cover.
With regard to the alleged prejudicial nature of the closing argument of Plaintiff's counsel, the Court notes that the case of Klotz v. Sears Roebuck and Co., 267 F.2d 53 (7th Cir. 1959), cited by the District is completely inapposite. In Klotz the comments of counsel as to the price of an eye were so inflammatory and uncalled for as to require remedial action. Here, the Court is convinced that Plaintiff's counsel at no time exceeded the bounds of propriety and professional responsibility. In addition, the Court notes in passing that no objection was made to counsel's approach either during his argument or at any time prior to the filing of this Motion.
The first ground urged by the District in support of its Motion is not without difficulty. The many cases and authorities cited by both sides necessitate a detailed review of this question in order to effect a responsible disposition.
This case does not support the District's position in the instant action however. In Coale the Court said:
"* * * [If] the stake was near the apex of this reservation, where pedestrians on the sidewalk might be injured, the District of Columbia would be liable, as in an ordinary case for injuries sustained by one travelling upon the sidewalk. If in fact the stake was upon the government reservation the District was not liable. Whether it was a few inches or a few feet within the reservation was not material. The District is not liable, for it has no jurisdiction over this government reservation No. 270 either at its center or at its boundary."
Thus it can be seen that Coale has no applicability to the present case. If anything Coale militates against the District of Columbia's position in the present case, for it says that if this stake had been on the sidewalk rather than on the government reservation as was conceded, the District would have been liable to the plaintiff ...