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07/16/90 KEVIN WASHINGTON v. A & H GARCIAS TRASH

July 16, 1990

KEVIN WASHINGTON, APPELLANT
v.
A & H GARCIAS TRASH HAULING CO., ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. William C. Gardner, Trial Judge; Hon. John H. Suda, Trial Judge

Ferren, Belson, and Schwelb, Associate Judges. Opinion for the court by Associate Judge Belson. Opinion by Associate Judge Schwelb, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Belson

This case arises out of a collision between a bicycle courier and a trash truck, the "Macho Diesel," in, a downtown intersection. The bicyclist, appellant Washington, brought an action sounding in tort, alleging that the negligence of the truck driver caused the collision. Defendants ("truck driver") denied primary negligence, and asserted the defense of contributory negligence. After a full trial on the merits, a jury found for the bicyclist and awarded him $31,640 in damages. The trial court, Judge Gardner, denied the truck driver's motion for judgment notwithstanding the verdict, but granted his alternative motion for a new trial. At a second trial before a different Judge, Judge Suda, the trial court granted the truck driver's motion for directed verdict at the close of the bicyclist's case, ruling that the bicyclist had not made out a prima facie case of primary negligence against appellees, and that the bicyclist was contributorily negligent as a matter of law. The bicyclist appeals from both rulings. We affirm.

Our review of a grant of a new trial is limited to whether the trial court abused its discretion. Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1110 (D.C. 1986); Rich v. District of Columbia, 410 A.2d 528, 535 (D.C. 1979); Aqui v. Isaac, 342 A.2d 370, 372 (D.C. 1975). In ruling on the motion, the trial court may consider the credibility of witnesses as well as the evidence offered by beth sides. See Rich, supra, 410 A.2d at 535 (citing Taylor v. Washington Terminal Co., 133 U.S. App. D.C. 110, 113, 409 F.2d 145, 148 (1968)); 9 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2531 (1971). A review of the record of the first trial leads us to conclude that it was a proper exercise of the trial court's discretion to grant a new trial on the ground that the verdict was contrary to the clear weight of the evidence. We will not detail the basis for our Conclusion, as it will become clear from the Discussion of the grant of a directed verdict in favor of the truck driver on the substantially similar facts developed at the subsequent retrial of the case.

On review of an order granting a motion for directed verdict, this court will view the facts, as the trial court was required to, in the light most favorable to the non-moving party. Bauman v. Sragow, 308 A.2d 243, 244 (D.C. 1973). While negligence is usually a question of fact for the jury, see, e.g., Aqui v. Isaac, supra, 342 A.2d at 372, it is clear that the court may take that issue from the jury in appropriate cases. We agree with the trial Judge that on the evidence before the jury the only Conclusion that it reasonably could have reached was that the bicyclist was contributorily negligent. The trial court further concluded that the evidence required a finding that the bicyclist's contributory negligence was a proximate cause of the collision, a Conclusion we regard as indisputable on this record. Looking to the truck driver's conduct, the trial court concluded that the record would not support a finding that primary negligence on the part of the truck driver was a proximate cause of the collision. Because we affirm the trial Judge's ruling on contributory negligence, we need not reach the issue of primary negligence. *fn1

The evidence before the trial court established that the truck and the bicycle collided as the truck was turning right onto M Street, N.W., from 19th Street. Where those two streets intersect, M Street runs one-way westbound, and 19th runs one-way southbound. Both parties had been proceeding south, the truck driver in the center lane of 19th Street and the bicyclist in the curb or parking lane. According to the bicyclist's testimony, there was a car parked in the curb lane not more than two car lengths north of the intersection, and the bicyclist was proceeding down 19th Street parallel to the trash truck, close enough to touch it but without crossing the line that separated the curb lane from the adjacent center lane. The bicyclist testified he was traveling next to the side view mirror on the passenger side of the truck as the vehicles approached the intersection. It was not clear from the bicyclist's testimony whether he was visible to the driver of the large trash truck. While the bicyclist did not see the trash truck's turning signal go on, and said he did not think it was on, he acknowledged that he did not look to see if the signal was on, as he was not paying any attention to that because he "didn't figure he was going to make that turn."

Judge Suda ruled in directing a verdict for defendants that appellant's contributory negligence was, as a matter of law, a proximate cause of the collision. This finding entitled the truck driver to a directed verdict. The bicyclist's own testimony established that as the bicycle and the trash truck approached M Street together, the bicyclist was aware of the truck. Even though he was not paying attention to the turn signal, he was fully chargeable with the knowledge that when the truck reached M Street on a green light and proceeded into the intersection, it would either go straight ahead or turn onto M Street. The bicyclist, for his own safety, was obliged to pay close attention to the movements of the truck, and to anticipate the possibility that it might turn right, toward the bicycle. *fn2 Even if the bicyclist was unaware that M Street was a one-way street for westbound traffic, he knew that a right turn was one of three possible directions the truck might take upon reaching the intersection. In turning right from the center lane, the driver was obeying applicable traffic regulations, as the curb lane was occupied by the vehicle parked just north ("one or two car lengths," according to appellant) of the intersection. 18 D.C.M.R. § 2203.3 (1981). *fn3 Because there was a parked car close to the intersection in the curb or parking lane, the truck could make the right turn only from the lane it occupied. The bicyclist could not reasonably rely on an assumption that the truck driver would anticipate traffic in a lane the truck driver would consider occupied by the parked car, or on his stated assumption that he "didn't figure he was going to make that turn."

Given the circumstances under which the bicyclist approached the intersection, he was negligent in falling to anticipate the possibility that the truck would turn right onto M Street, failing to observe the truck sufficiently to ascertain whether the truck would do so and subsequently was commencing to do so, and failing to control the speed and direction of his bicycle in such fashion as to be able to avoid collision if the truck should turn right.

The outcome here is not controlled by our ruling in Williams v. Anderson, 485 A.2d 198 (D.C. 1984). Our brief per curiam opinion there reveals that Williams, a bicyclist, was struck by a cab that made a right turn from the center lane striking the bicyclist who was proceeding in the same direction in the curb lane. This court reversed the trial court's order setting aside a verdict for Williams because of his contributory negligence. Several factors distinguish this case from Williams. In that case there was apparently no vehicle parked in the curb lane one or two car lengths above the intersection, nor was there mention of an acknowledgment by the bicyclist that he was not paying attention to the turning signals on the other vehicle and that he "didn't figure [the other driver] was going to make that turn." These factors enter prominently into our evaluation of appellant's conduct.

"Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law." Tilghman v. Johnson, 513 A.2d 1350, 1351 (D.C. 1986). This is one such case. We are satisfied that the evidence before Judge Suda allowed of no other Conclusion than that appellant failed to ride his bicycle with reasonable care for his own safety and that negligence on his part was a contributing proximate cause of the collision.

Affirmed.

SCHWELB, Associate Judge, Concurring in part and Dissenting in part: Assessment of a collision between a motor vehicle and a bicycle can depend on one's perspective. To someone who perhaps used to ride a bike to school and still owns such a contraption, but who tends in middle age to rely most often on the marvels of the internal combustion engine, it may well appear that a cyclist pedalling away on a busy downtown street is intrinsically a nuisance and probably negligent just because he is there. The guy on the bike who is proceeding south on 19th Street at its intersection with M Street, N.W. with his motorized fellow-travellers on every side of him may, on the other hand, feel much like a minnow among sharks, or even among whales when a "Macho Diesel" trash truck is among those travelling southbound nearby. Perceptions aside, however, I cannot agree with my colleagues that the plaintiff cyclist in this case, despite gaping contradictions in his various accounts, *fn1 was shown to be contributorily negligent as a matter of law. Accordingly, I respectfully Dissent from the affirmance of Judge Suda's order directing a verdict against the cyclist. *fn2

I

At the Conclusion of the plaintiff's case at the second trial, the defense ...


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