Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Steadman, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: On March 21, 1987, a bus driven by John Bryant collided with an automobile driven by Dorothy Chappell. Chappell was traveling in front of the bus and the accident occurred as she attempted to make a U-turn. Plaintiff/appellant Lillian Pazmino *fn1 was a passenger in the bus and was injured when she was thrown from her standing position near the back of the bus into the fare box in the front of the bus. We agree with appellant that the trial court erred in directing a verdict at the close of plaintiffs' case in favor of defendant/appellee Washington Metropolitan Area Transit Authority ("WMATA"), *fn2 and accordingly we reverse and remand for further proceedings.
We begin with a review of the applicable legal principles. A directed verdict is proper only if there is no evidentiary foundation, including all rational inferences from the evidence, by which a reasonable juror could find for the party opposing the motion, considering all the evidence in the light most favorable to that party. Washington v. A & H Garcias Trash Hauling Co., 584 A.2d 544, 545 (D.C. 1991); see Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 718-19 (D.C. 1985); see also Washington Metropolitan Area Transit Authority v. Jones, 443 A.2d 45, 50 (D.C. 1982) (en banc) (only where "considering every legitimate inference, only one Conclusion may be drawn . . . the trial court . . . rule as a matter of law on negligence . . ."). "In so viewing the evidence, the court 'must take care to avoid weighing the evidence, passing on the credibility of witnesses or substituting its judgment for that of the jury.'" Vuitch v. Furr, 482 A.2d 811, 814 (D.C. 1984) (quoting Corley v. BP Oil Corp., 402 A.2d 1258, 1263 (D.C. 1979)). "If it is possible to derive conflicting inferences from the evidence, the trial Judge should allow the case to go to the jury." Shannon & Luchs Co. v. Tindal, 415 A.2d 805, 807 (D.C. 1980). In reviewing an order granting a motion for a directed verdict, this court must apply the same standard as the trial court. Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 586 (D.C. 1985); Vuitch v. Furr, supra, 482 A.2d at 814.
This court has held that "WMATA, like any common carrier, owes a duty of reasonable care to its passengers." McKethean v. Washington Metropolitan Area Transit Authority, 588 A.2d 708, 712 (D.C. 1991). This requires "all the care and caution which a bus driver of reasonable skill, foresight, and prudence could be fairly expected to exercise," and "what is reasonable depends upon the dangerousness of the activity involved. The greater the danger, the greater the care which must be exercised." D.C. Transit Sys. Inc. v. Carney, 254 A.2d 402, 403 (D.C. 1969). *fn3
Many years ago, we noted the validity of the general rule that "the primary duty to avoid collision as between motorist ahead and the motorist following lies with the motorist behind," although this principle does not warrant a finding of liability as a matter of law and a duty of care rests of course on both motorists. Price v. Derrickson, 89 A.2d 231, 232 (D.C. 1952). See also Akers v. Tomlinson, 222 A.2d 644, 645 n.2 and cases cited (D.C. 1966). Thus, the driver of the trailing car has a duty to exercise reasonable care to avoid injuries. See 60A C.J.S. MOTOR VEHICLES § 323(1) (1969). Normally, the negligence of the trailing car colliding with a forward car is essentially a question for the fact finder to determine and not a matter of law. Price v. Derrickson, supra, 89 A.2d at 232. The motorist has a duty to keep a lookout and to observe the movements of vehicles ahead. See 60A C.J.S. MOTOR VEHICLES § 323(1) (1969).
These general principles are reflected in the District's traffic regulations. 18 DCMR § 2201.4 (1987) provides that "the driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicle being followed, the traffic upon the highway, and the condition of the highway." With respect to passing another vehicle, the driver, overtaking another car traveling in the same direction, shall pass to the left at a safe distance, id. § 2202.2, and if while overtaking and passing, the driver crosses the center of the road, then the driver shall only overtake and pass when the "left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completed without interfering with the safe operation of any vehicle . . . overtaken." Id. § 2202.7. The driver of a vehicle may not move from the lane in which he is driving "until the driver has first ascertained that the movement can be made with safety." Id. § 2201.8.
Finally, we make note of the posture of the case, presenting a potential situation of two joint tortfeasors. WMATA emphasizes the culpability of Chappell in causing the accident, and contends that Chappell's admission that the accident was her fault demonstrates that the bus driver was not negligent. This emphasis is misplaced, however, for there can be more than one proximate cause of an accident. Any conduct, therefore, that was a substantial contributing factor in causing the accident is a legal cause of that accident. See Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1232 (D.C. 1988); District of Columbia v. Freeman, 477 A.2d 713, 715-16 (D.C. 1984); Lacy v. District of Columbia, 424 A.2d 317, 322 (D.C. 1980); see also Birchall v. Capital Transit Co., 34 A.2d 624, 626 (D.C. 1943) ("the jury might have found that plaintiff's damage resulted entirely from the negligence of the other driver. But it may, on the other hand, have found that the bus operator was guilty of negligence . . . and that such negligence was a contributing cause of plaintiff's injury. These were questions for the jury, and not for the court."). Thus, the fact that Chappell may have been negligent does not mean that WMATA is free of negligence. The duty at issue here is not that of WMATA to Chappell but rather that of WMATA to appellant, a standee on the WMATA bus. See note 3 (supra) .
The trial court here concluded that there was not "any evidence in this case at all from which a juror could reasonably conclude that the bus driver was negligent [because appellants] presented no evidence at all of where the bus was, what it did, who the driver was, what he did, what anybody else saw about this accident." The court further concluded that "to accept [appellants'] version of events would require to conclude that there was negligence because the accident happened." *fn4 It is of course quite correct that the mere happening of an accident does not constitute proof of negligence. District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978) ("mere happening of an accident does not impose liability or reveal proof of negligence."); see D.C. Transit Sys. Inc v. Carney, supra, 254 A.2d at 403 ("here must be some evidence from which the jury could find or infer that the bus driver was negligent before [the bus company] can be held liable for [the passenger's] injuries."). However, we think that there was more evidence here to support a jury finding of negligence on the part of the bus driver than the mere happening of the accident, particularly in light of the reasonable inferences that the jury might draw.
The principal witness as to the details of the accident was Chappell. She testified that she was driving north on 14th Street, N.W., in late afternoon. She said that at that location, 14th Street had one lane of traffic in each direction. *fn5 She was hurrying to get to the bank and was therefore moving slightly over the speed limit, perhaps at a rate of 35 miles per hour. As she approached the middle of the block, she realized that she had passed the location of her bank and therefore slowed her vehicle to a speed of some 10 to 20 miles per hour in order to make a U-turn. She checked her rear-view and side-view mirrors and started to make the U-turn as she moved to the left. As she started the turn, the bus impacted with the side of her car. Prior to the collision, she had not seen the bus approaching; it was just there "out of the spur of the moment." The bus driver did not sound his horn or give any other kind of warning signal.
Further testimony was provided by both appellant and Bella Beck, a passenger on the bus, that at the time of the accident appellant was standing toward the back of the bus, by the rear exit, holding onto a rail. Suddenly without warning the bus abruptly stopped, appellant lost her grip, slid down the aisle toward the bus driver, hit her head against the farebox, and became unconscious. Ms. Beck described the bus's movement as sudden and that all the passengers were "shaken up" by the stop. *fn6
In considering the totality of the evidence, including all rational inferences, in the light most favorable to appellant and in the complete absence of any contrary testimony by the bus driver or otherwise, we think a reasonable jury could find a negligent overtaking in violation of the "primary duty" of the trailing vehicle. While no direct evidence had been presented about the precise location or movement of the bus prior to the accident, the jury could conclude that the bus at the outset of the incident should have been at a reasonable and prudent distance behind Chappell *fn7 and that Chappell's actions by their nature should have alerted the driver to the need for particular caution to avoid contributing to an untoward incident, including not pulling into the oncoming lane to attempt to pass without warning. *fn8 In the middle of the block, Chappell slowed down from a speeding velocity to the considerably slower pace that would enable her to make a U-turn, which presumably automatically activated her rear brake lights or otherwise gave cause for alert. *fn9 Her purpose was uncertain. She moved to the left on a two-lane street. The bus driver did not sound the horn or give any other indication of danger or of an intent to pass. Appellant points out, without contest by appellee, that U-turns were not prohibited at that part of 14th Street. See 18 DCMR § 2204.6 (1987) (U-turns prohibited where there are "No U-Turn" signs); id. § 2204.7 (U-turns prohibited at controlled intersections). The jury could find that the bus was the trailing vehicle. It contained at least one passenger who was standing and hence particularly ...