Before Terry and Farrell, Associate Judges, and Greene, Associate Judge of the Superior Court of the District of Columbia. *fn1
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Ann O'Regan Keary, Trial Judge)
This case involves a collision between a bus and a bicycle in a District of Columbia intersection. The two impacted when the bus driver, while making a right turn, cut off the bicyclist, who was in the lane to the right of the bus. The bicyclist struck the side of the bus, lost his balance, and fell under the bus. The bus' momentum carried it forward, trapping the bicyclist under its right rear wheel. The jury returned a verdict for the bicyclist, awarding him $925,000 in damages. Through the use of a special verdict form, the jury found that the bus driver was negligent and that the bicyclist was contributorily negligent. However, because the jury concluded that the bus driver had the last clear chance to avoid the accident, it found the driver ultimately responsible for what happened.
Appellant, the Washington Metropolitan Area Transit Authority ("WMATA" or "Metro"), maintains that the trial court erred in denying its motion for judgment notwithstanding the verdict. It argues that appellee Young, the bicyclist and plaintiff below, did not present sufficient evidence of last clear chance, and hence that the case should not have gone to the jury on that theory. WMATA also asserts that the court erred when it defined the word "concur," in reinstructing the jury on concurrent negligence, and when it allowed the jury to consider WMATA's standard operating procedures as evidence of the relevant standard of care. Although the question is a close one, we hold that appellee presented sufficient evidence to go to the jury on the issue of last clear chance. Finding WMATA's other arguments unpersuasive, we affirm.
The accident occurred at the intersection where Calvert Street and Cleveland Avenue meet 29th Street, N.W. Like many in the District of Columbia, the intersection has an unusual configuration. Motorists entering the intersection from the east on Calvert Street are presented with four options: a sharp right turn onto 29th Street heading north, a moderate right onto Cleveland Avenue heading northwest, a moderate left onto 29th Street heading southwest, and a sharp left onto McGill Terrace heading south. Because Calvert Street ends at the intersection, motorists cannot continue straight ahead on Calvert. The westbound portion of Calvert Street, upon which both the bus and the bicycle were proceeding just before the accident, consists of two lanes. By means of a channeling line painted in the roadway, traffic in the left lane is directed to make a wide-angle right turn (about 135 degrees) onto Cleveland Avenue unless turning left. Traffic in the right lane can make either a wide-angle right turn onto Cleveland or a sharp right turn (90 degrees) onto 29th Street.
Mr. Young testified that on September 9, 1994, at approximately 9:20 a.m., he was traveling westbound on Calvert Street, approaching its intersection with Cleveland Avenue and 29th Street. He had ridden through that intersection on his bicycle many times on his way to and from work and intended as usual to proceed through the intersection and head northwest on Cleveland. When he was approximately four hundred feet away, he noticed a Metro bus ahead of him at the intersection. The bus was in the left lane and was stopped at a red light.
Mr. Young rode his bicycle toward the intersection in the right lane, which was clear of traffic. As he neared the intersection, the light turned green. The bus accelerated quickly, and Young continued pedaling at a steady rate, anticipating the upcoming hill on Cleveland Avenue. As they entered the intersection, the bus was slightly ahead and to the left of Young. Once in the intersection, the bus began to bear slightly to the right, indicating to Mr. Young that it was continuing forward onto Cleveland Avenue. The bus then made a sudden sharp right turn into the northbound lane of 29th Street, cutting across Young's path in the curb lane. Young tried to avoid the bus by braking and turning to the right, but he was unable to elude its continuing encroachment, and his bicycle struck the middle of the right side of the bus. The initial contact caused him to lose his balance and collide with the bus a second time. He was then propelled over the handlebars and landed under the bus, where he was dragged for a short distance. When the bus came to a stop, its right rear wheel was on top of his left leg, pinning him there until, nearly an hour later, rescue workers raised the bus and pulled him out. Mr. Young suffered a number of severe injuries as a result of this accident.
According to Young, the bus gave no indication that it was about to make a right turn into 29th Street before it abruptly veered in front of him. The bus did not appear to be braking or altering its speed, nor did it stop to indicate that it was going to cut across the curb lane. At trial Young could not recall whether the bus' right turn signal was flashing. However, he testified that because the bus was in the left lane, a flashing right signal would have indicated to him that the bus was making a moderate right turn onto Cleveland Avenue rather than a sharp right onto 29th Street.
Colleen Morgan corroborated much of Young's account of the accident. Ms. Morgan was driving south on 29th Street, looking for a parking space, when she saw the bus and the bicycle enter the intersection, advancing toward Cleveland Avenue. At that time they were about four or five feet apart. "The bus was more in toward the left lane, and the cyclist was more in the right lane." The bus then "took a sharp turn and impacted the cyclist . . . ." Ms. Morgan further testified that the bus made a wide right turn, going first "a little left, but then [taking] a real sharp abrupt turn to the right." She also observed that buses often make wide right turns at that intersection. According to Morgan, the bicyclist struck the side of the bus near its front end. After the impact, the bus continued forward for a short distance and then stopped, facing her on 29th Street. In Ms. Morgan's opinion, Mr. Young could not have done anything to avoid the collision, but the bus could have stopped if the driver had seen Young before he began to make the turn.
Stanhope Charles, a passenger on the bus who was seated three seats behind the driver, also recalled that the bus was "in the passing lane" when it stopped for the red light at the intersection. When the bus had passed the bicyclist earlier on Calvert Street, Charles had noticed that the bicyclist was "in the curb lane" and was not racing or behaving recklessly. Charles did not see the collision between Young and the bus, but he recalled that the driver stopped the bus immediately when another passenger yelled, "Someone's hit." Moreover, although Charles described the bus' turn as "wide," he also said that the driver was operating the bus in a reasonable manner and made "a fluid turn."
Some of WMATA's standard operating procedures (SOPs) were introduced into evidence and were the subject of testimony by Napoleon Jones, a WMATA training and safety instructor. The SOP for right turns states that bus drivers should maintain a speed between three and five miles per hour during the turn, keep one foot on the brake if they are going over three miles per hour, and check mirrors for vehicles and pedestrians during the turn. Mr. Jones said, however, that the SOPs set "an ideal standard as a goal"; drivers are not disciplined for making right turns that do not strictly comply with the SOPs. Jones confirmed that it would be improper to make a right turn onto 29th Street from the left lane of Calvert Street. However, he explained that it may not be possible to remain completely in the right lane while making such a right turn; a driver may have to angle left before beginning the turn to the right. In addition, when making a turn on an incline, *fn1 it may not be possible to stay at three miles an hour or to keep one's foot on the brake.
With respect to the SOP for mirror adjustments, Mr. Jones testified that if the mirrors are properly adjusted in accordance with the SOP, a driver can see the right rear tire of the bus through the right exterior mirror but cannot see vehicles behind the bus through that mirror. The language of the SOP and the diagrams that accompanied it were somewhat inconsistent with Jones' testimony. According to the diagram for the right exterior mirror, a driver should be able to see objects and vehicles that are located near -- i.e., four to five feet from -- the rear of the bus through that mirror. Jones' testimony that the right exterior mirror should be positioned so that the driver can see the right rear tire ...