it had actual notice, or in the exercise of reasonable care and caution should have had notice of the condition. The husband of the Female Plaintiff joined the suit and filed a claim for loss of consortium. After the jury returned a verdict in favor of the Female Plaintiff for $7,500.00 and against the Male Plaintiff, the District of Columbia filed the present Motion.
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.
The first case relied upon by the District in support of its position that the United States had the primary responsibility for maintaining the area in question is the case of District of Columbia v. Coale, 30 App. D.C. 143 (1907). In Coale the plaintiff was walking on Florida Avenue toward twenty-first street when he struck his leg against a stake which was concededly on "government reservation No. 270", but near the sidewalk. The trial court refused to instruct the jury that if the stake itself was on the government reservation the District would not be liable. From a jury verdict for the plaintiff, the District appealed. On appeal the verdict for the plaintiff was reversed.
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 "as in an ordinary case for injuries sustained by one travelling upon the sidewalk."
Another case relied upon by the District is the District Court case of Leary v. District of Columbia and the United States, 166 F. Supp. 542 (D.C.D.C. 1958). In Leary the plaintiff fell on a sidewalk on the south side of C Street, S.W., between 12th and 13th streets. She sued both the District and the United States, charging both with negligence in failing to maintain the sidewalk in a safe condition for pedestrians. Both the District and the United States moved for summary judgment on the ground that the control of the sidewalk was exclusively the responsibility of the other.
The facts giving rise to the motions were that the United States had acquired the property on which the plaintiff fell by purchase and condemnation in 1931 and 1932; that the sidewalk itself was built by the District in 1934 and was paid for by the United States and that the District had repaired this sidewalk on occasion subsequent to its being built.
The trial court (Judge Youngdahl) denied the motions of both the District and the United States, basing its ruling as to the District on the ground that it would be liable to the plaintiff if it had negligently constructed or repaired the sidewalk and observing that this would be true whether or not the District had the prime responsibility for maintaining it.
With regard to the motion of the United States, the trial court characterized the problem as "more difficult."
The Government cited the authority of Barnes v. District of Columbia, 91 U.S. 540, 23 L. Ed. 440 (1875), and District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472 (1890), for the proposition that although the fee to the streets and sidewalks of the District may be in the United States, the District of Columbia has the primary duty to maintain the streets in proper condition. In its ruling on the motion of the United States the trial court pointed out:
"In none of these cases was the question of liability on the part of the United States presented to the Court. However, the language appears to indicate that only the District is liable for accidents arising out of improper construction or maintenance of the city streets. This Court would be inclined to agree that this is the situation here were it not for two disturbing facts."