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September 2, 1988

FREDERICK JAMES JOHNSON, et al., Plaintiffs,
ERNEST ALBERT STROUSE, et al., Defendants and Third-Party Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Third-Party Defendants

The opinion of the court was delivered by: LAMBERTH


 Frederick James Johnson and his wife, Beverly Ann Johnson, brought this action in tort against Ernest Albert Strouse and his father, Ernest Herbert Strouse. Ernest Albert was the driver, and Ernest Herbert the owner, of a car which struck Mr. Johnson's car at the intersection of Kenyon Street and Sherman Avenue, Northwest, in the District of Columbia.

 The Strouses in turn bring a third party complaint against the District of Columbia and Potomac Electric Power Company ("PEPCO") in contribution and indemnity, claiming that the traffic signals at the intersection in question were not operating at the time of the accident. The Strouses have since paid the Johnsons $ 100,000 in settlement without admitting fault, and have also dismissed their third party claim against PEPCO, receiving $ 15,000 in settlement from the utility. At the bench trial, the Strouses sought $ 35,000 from the only remaining party, the District of Columbia, but now in a post trial memorandum seek $ 42,500 in contribution. The Strouses contend that as a joint tort-feasor the District should not benefit from the Strouses' settlement with PEPCO, but rather should split equally with them the remaining damages of $ 85,000.

 Findings of Fact

 Johnson entered the intersection first. Strouse, who was unaware he was approaching a cross street, did not slow down until Johnson's car suddenly appeared only 10 to 20 feet away, too late for Strouse to avoid colliding with it.

 By the time of the accident, the traffic signals at Kenyon and Sherman had at least a brief history of malfunction. There had been one malfunction reported in October, 1985 to the District's Traffic Signal Control Branch; another in November; and on December 5, the day before the accident, there were four reported malfunctions. The first was an "all out," reported at 5:40 p.m. to the District. A technician was notified at 5:41 p.m., arrived at the scene at 6:00 p.m., and the problem was "cleared" at 8:10 p.m. [Third Party] Plaintiffs' Exhibits (TPPE) 31 and 32. The second malfunction that night, a grounded cable, was reported at 7:05 p.m. (apparently by the same technician who responded to the first call), and was cleared at 10:10 p.m.; however, the report shows that the flashing circuit (the backup system to normal signal operations) remained inoperative. TPPE 33. There were two other problems reported that night, one of which was not cleared until sometime the next morning. See TPPE 34 and 35. Further, the backup flashing circuit was never repaired until after the accident.

 The next morning, before the accident, a Traffic Signal Control employee named Chuck Stewart was on patrol in the area of the accident looking for defective traffic signals. Shortly after 6:00 a.m., he observed that the signals at Kenyon and Sherman were once again "all out," and reported this at 6:12 a.m. However, a technician was not notified until almost an hour later, at 7:07 a.m. TPPE 36. Meanwhile, Stewart left the scene without seeking police assistance, without setting flares, and without taking any other step to alleviate the danger at the intersection. The accident occurred just a few minutes later, at about 6:30 a.m.

 Conclusions of Law

 1. Liability

 As a preliminary matter, it is clear from the evidence at trial that third party plaintiff Ernest Albert Strouse was negligent. It is undisputed that he was driving his father's car somewhat in excess of the speed limit. Further, Johnson's car had entered the uncontrolled intersection first, which required Strouse to yield the right of way under District of Columbia Municipal Regulations. 18 DCMR ยง 2208.1 *fn1" (1981). Thus, Strouse was in violation of two traffic laws resulting in the very harm each was intended to avoid; further, he offered no evidence sufficient to explain or excuse his violations, and this constitutes negligence per se. Perkinson v. Gilbert/Robinson, Inc., 261 U.S. App. D.C. 198, 821 F.2d 686, 692 (D.C. Cir. 1987).

 Strouse did testify that he was unable to tell he was approaching an intersection since the signal lights were out, given the prevailing early morning darkness together with his unfamiliarity with Kenyon Street. This might be plausible were it not also true that he was speeding; unfamiliar surroundings cloaked in darkness should have engendered caution.

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