Appeal from the Superior Court of the District of Columbia. (Hon. Curtis E. von Kann, Trial Judge). (Hon. Henry F. Greene, Second Trial Judge).
Before Ferren and Schwelb, Associate Judges, and Kern,* Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Senior Judge Kern at p. 11.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: This personal injury case arises out of a rear-end collision involving two automobiles. The front vehicle was operated by plaintiff Kevin C. Best, an officer of the Metropolitan Police Department. Best's passengers and co-plaintiffs were his mother, Louberta R. Best, and his then-fiancee, Sherry A. Stinson. The rear car was operated by defendant Laura Ann Fisher and registered in the name of Ms. Fisher's father and co-defendant, Ronald K. Fisher.
The controversy went to trial twice. At the Conclusion of the first trial, the jury returned a verdict in favor of the Fishers. The plaintiffs filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The Judge granted the motion for a new trial. At the second trial, a jury found in favor of the plaintiffs and awarded Ms. Stinson $40,000, Officer Best $10,000, and Mrs. Best $10,000. On appeal, Ms. Fisher's sole contention is that the trial Judge abused his discretion in granting the motion for a new trial. We disagree and affirm.
The accident to which this litigation relates took place on June 10, 1989 in the 2800 block of Massachusetts Avenue, N.W., near the entrance to the Rock Creek Parkway. It is undisputed that Officer Best suddenly stopped or slowed down in order to avoid a collision with a vehicle in front of him and that Ms. Fisher struck him in the rear, "totalling" the Fisher car and causing heavy damage to the Best vehicle.
The three plaintiffs provided consistent testimony. None of them was aware of Ms. Fisher's vehicle prior to the collision. Officer Best testified that he had come to rest some three feet behind the car in front of him and that Ms. Fisher's automobile struck him hard in the rear some fifteen to twenty seconds later.
There was substantial testimony, not contradicted during the defense case, to the effect that Ms. Fisher admitted fault on the scene. When the principals got out of their respective vehicles, Ms. Fisher said "don't hit me" to Officer Best; Mrs. Best reassured her that her son was a police officer and would not harm her. According to Mrs. Best, Ms. Fisher stated that "she was looking in the mirror and when she got up she was too close that she couldn't stop." Ms. Stinson testified that Ms. Fisher said that
she was on her way to work and that she was running a little late and that she had her eyes off the road and was looking somewhere and [that when] she looked back it was too late for her to stop.
At the hospital to which all four principals were taken, a police officer who investigated the accident gave Ms. Fisher a ticket for "following too close." Ms. Fisher signed the ticket and paid the $25 fine.
Ms. Fisher was called as an adverse witness by the plaintiffs, and she also testified as the sole witness for the defense. The gravamen of her testimony was as follows:
Mr. Best had switched lanes in front of me and we were slowing down preparing to come to a stop at the right lane ahead or to slow down for the traffic ahead. At that point I was going about 15 miles an hour and I had put my dutch in because I had a manual transmission and I was braking. And I put my car into second gear because the traffic ahead of him had continued to - or it started to move through and turned into the parkway. And he had, you know, previously braked also, as I was. And then he continued to go. And he slammed on his brakes, I slammed mine, and we had a collision.
Although, during two stints on the witness stand, Ms. Fisher could have contested the plaintiffs' allegation that she had admitted taking her eyes off the road and conceded fault, she never did so. Ms. Fisher testified during the case for the plaintiffs that she did not take her eyes off the road, but the following colloquy ensued:
Q. Isn't it a fact, Ms. Fisher, you told both ladies that -
Q. Let me finish the question and you can answer, okay.
Is it not a fact that you told both ladies that you looked in the mirror and took your eyes off the road and all of a sudden this accident happened?
A. I had to look in my mirror.
Q. You had no reason to look in your rear view mirror?
If the record on this point merited clarification, none was provided during the defense case, and the testimony as to Ms. Fisher's admission of fault was never really denied. *fn1
The jury, as we have noted, returned a verdict at the first trial in favor of Ms. Fisher and against all three plaintiffs. The plaintiffs filed post-trial motions and, on November 15, 1991, the Judge issued a comprehensive oral opinion from the bench and ordered a new trial. The Judge noted that in some sixty trials on his civil calendar over a period of approximately two years, he had not set aside a single jury verdict. He recognized that such an action should be taken "very very sparingly," but he explained that the court had the authority to set aside a verdict which was against the great weight of the evidence. The Judge observed that Mrs. Best and Ms. Stinson were passengers who "were not guilty of any contributory negligence," and that therefore the only possible basis for the verdict was a finding that Ms. Fisher was not negligent. Such a finding, according to the Judge, was "against the great weight of the evidence," because Ms. Fisher had presented no testimony tending to show that she had exercised due care. The Judge stated, in pertinent part, as follows:
Now, the stopping suddenly of the first car may give rise to contributory negligence on the part of that driver, perhaps so. The fact that one is following another car and it suddenly stops and, boom, you plow into them I think, absent any other explanation, and there was none here, seems to me to indicate that the great weight of the evidence supports the Conclusion that this driver, Ms. Fisher, was simply ...