aware that his outstretched mirrors had struck Plaintiff until some two blocks away from the accident scene when a motorist told him what had happened. The driver returned to the site of the accident. When asked about the accident, the driver remembered that he had felt and heard something when he passed the Madison Avenue intersection. He thought that his side mirror may have struck the pole housing the traffic signal. The pole was located well within the sidewalk where the truck's mirrors had no right to be.
A person using a sidewalk is entitled to be free from bodily injury caused by trucks or other vehicles using the highway. Drivers must keep a safe distance away, so that no part of their vehicle can strike pedestrians. If some part of a vehicle does strike an individual on the sidewalk, a prima facie case of negligence is shown. Calbreath v. Capital Transit Company, 99 U.S. App. D.C. 383, 240 F.2d 621, 622-623 (1956).
It is clear that the driver failed to exercise the level of care required to operate a vehicle with extended mirrors safely. As the Defendant's expert witness testified, the driver while properly driving within the curb lane, had a margin of error of only 2 1/2 inches on either side of the truck. In addition, while the driver was on notice from prior experience that his mirrors might strike objects on the side of the road, he made no effort to avoid such contact.
Rather than proceeding forward in either of the other two available lanes, he positioned himself in the curb lane, exposing pedestrians to the danger of his over-hanging mirrors. There is no question that the driver saw people standing on the comer of 14th and Madison as he made his way down 14th Street. Although he saw pedestrians on the sidewalk, he did nothing to alert them of the possible danger presented by the truck's mirror. He neither reduced his rate of speed, nor sounded his horn to warn pedestrians of the oncoming danger.
When attempting to navigate a large vehicle with oversized mirrors down narrow city streets, a driver must exercise the degree of care demanded by the circumstances. The requisite care was not exercised by the driver in this case when his truck struck Plaintiff while he was standing on the curb. Accordingly, the Court finds the driver of the vehicle to be negligent as a matter of law.
This result pertains even though the truck in question passed inspection by the D.C. Department of Motor Vehicles. A vehicle passing inspection, or being of legally acceptable dimensions, does not give license to the person operating the vehicle to strike pedestrians standing on the curb. To hold otherwise would be to transfer the risk from the driver of a vehicle with extended mirrors to the pedestrian and effectively create an "open season" on D.C.'s pedestrians. This would be especially so in a city such as Washington D.C., where the many monuments and museums create a magnet for pedestrian traffic.
The testimony of Defendant's accident reconstruction witness that Plaintiff may have been leaning into the roadway by a few inches at the time of the accident does not create a triable factual issue. The witness's testimony at best offered one possible way that the accident may have happened. His testimony rested solely on his analysis of where Plaintiff was struck by the Defendant vehicle's mirror. He reasoned that because of Plaintiff's height and the location of the injury, he had to be leaning forward for the mirror to strike the Plaintiff near or about his temple. Because there were other possibilities just as plausible as the theory that Plaintiff was leaning forward into the roadway, it would be rank speculation for the jury to select which version is the cause of the accident. The two to three inches of height reduction was just as explainable by the spread of Plaintiff's legs or that he may have been slouching at the time of the accident or may have been leaning to his left. There is no competent eye witness testimony that Plaintiff was leaning forward.
Defendant's expert witness conceded that for his opinion to be plausible, the jury would have to disregard two eye witnesses' testimony that Defendant's truck was approximately 6 inches from the curb when it struck Plaintiff. Acceptance of such uncontroverted eye witness testimony would have placed the truck's mirrors some 3 inches over the sidewalk when it struck Plaintiff Arnon Paz. Defendant's expert acknowledged this fact and testified that if the mirror extended over the sidewalk, it would be "unacceptable." For these reasons, this Court finds the expert's opinion to be without probative value and cannot support a trier of fact making a finding of contributory negligence on the part of Plaintiff Arnon Paz.
The proximate cause of the accident was Defendant's driving a vehicle with overhanging mirrors in a zone too close to pedestrian traffic without the driver exercising the requisite prudence and care. Pedestrians are entitled to assume there will be no danger from vehicular traffic when they are standing on the sidewalk waiting to cross the street.
The unrefuted testimony shows that the Plaintiff was standing on the curb. He had every right to be there and was not exposing himself to danger by standing on a street corner waiting for the traffic signal to change so that he and his wife might cross the street.
Plaintiff's actions in no way can be considered a proximate cause of the accident. Where there is heavy pedestrian traffic, an operator of a vehicle with extended mirrors driving in a narrow lane with at most a 2 1/2 inch clearance from the sidewalk, must navigate the vehicle in a way that will not cause harm to a pedestrian at or near the roadway. At all times, he must know where the pedestrians are stationed and how close the extended part of the vehicle he is driving happens to be to those who may be near the roadway about to cross the road. An operator of a vehicle does not relieve himself of responsibility by acknowledging that he did not know that he had struck a pedestrian thinking that the rattle he received from his mirror at the time of impact was because he might have hit the traffic signal.
This is particularly so where the driver recently switched lanes and had entered the curb lane for his own convenience because there was less vehicular traffic in that lane.
Last Clear Chance Doctrine
Even assuming that Plaintiff was contributorily negligent in this matter, the Court finds that he would be entitled to the benefit of the last clear chance doctrine. To succeed under this doctrine, Plaintiff Paz has the burden to prove by a preponderance of the evidence each of the following:
(1) that Plaintiff Paz was in a position of danger caused his own negligence and that of the Defendant;