District of Columbia v. Bolling , 4 App. D.C. 397 ( 1894 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. The first error complained of is based on the alleged failure of plaintiffs’ proofs to conform to their pleading. It is contended that the court erred in refusing defendant’s request for an instruction to the jury to return a verdict in its favor, because, under the allegations of joint ownership and use by all three of the defendants, the jury could not find against this defendant alone. And it is urged “ that the verdict against the District alone ex necessitate negatives the ownership and use as alleged.” The plaintiffs, having apparently no certain knowledge as to the ownership and uses of the poles as between the several defendants, joined all of them as defendants.

We think the effect of the first and second counts of the declaration is to make them all tort feasors or wrongdoers with a joint and several liability to the plaintiffs for the injury inflicted. It was clearly within the power of the jury to find a different verdict in the case of each defendant. Lovejoy v. Murray, 3 Wall. 11 ; Pirie v. Tvedt, 115 U. S. 41.

2. The subject of the second assignment of error is the refusal of the court to submit to the jury, as an issue in the case, the contributory negligence of Mrs. Bolling. Several prayers on this point were offered and refused. Taken together, they contained this proposition, substantially: That if the husband had but imperfect use of his left arm and hand, that this was known to the wife, and that but for this disability he might have controlled the horse and prevented the accident, the wife was guilty of contributory negligence and not entitled to a verdict.

Instructions are not to be given to a jury simply because they may embody a sound proposition of law in general. They must have a direct application to the case as made out by the evidence. Negligence is one thing, and casual connection thereof with the injury received is distinctly another thing. Contributory negligence, or that which deprives a complaining party of his right to recover for injuries received through the negligence of another, must in some degree have contributed thereto. Pre-existing negligence which amounts to a mere condition, and, though immediate in point of time, is nevertheless remote in the sense of causation, is not sufficient. We have heretofore said in another case: “ It is not true that every fault or want of care on his own part, preceding the receipt of an injury, will deprive the injured party of the right to recover therefor from the party inflicting it.” B. & P. RR. Co. v. Carrington, 3 App. D. C. 101.

It cannot be imputed to plaintiffs as negligence that they did not anticipate culpable negligence on the part of the defendant. They had the right to presume that the streets were clear and safe for ordinary travel. Wash. Gas L. Co. v. Poore, 3 App. D. C. 127.

It is difficult to conceive how, under ordinary conditions, to ride behind a gentle horse driven by one accustomed to his use, even though the driver might be “ slightly paralyzed,” so as to “ affect to some extent his left hand and arm, but not so that he could not use them,”- could be considered negligence, in a legal sense. Let it be granted, however, that under peculiar circumstances or under certain conditions the existence of which was known or could reasonably have been inferred, such an act might constitute contributory negligence, still there was no possible foundation for such a conclusion in this case, and the court did not err in refusing to submit the issue to the jury.

3. The third and last error assigned is the refusal of the court to give to the jury the following special instruction: “ The plaintiff is not entitled to recover against the District of Columbia unless the jury believe from the evidence that said defendant had notice that the telegraph pole which fell was in such a decayed and dangerous condition that by reason thereof it was liable to fall.”

This instruction was properly refused because it precluded the idea of the existence of such a thing as constructive notice, and made the responsibility of the District depend exclusively upon actual knowledge. Whilst the court was not bound to remedy the defect in this instruction and then give it to the jury, it nevertheless did so in the general charge,^* wherein constructive notice is defined in terms which have met with the approval of the Supreme Court. District of Columbia v. Woodbury, 136 U. S. 463.

There being no error in the record, the judgment appealed from must be affirmed; and it is so ordered.

* Note. — The portion of the charge of the court below to which reference is made was as follows : “The District is sued upon the general principle that it is the duty of the District authorities to keep the highway in a safe condition for the travelling public. They are bound to see, ordinarily, that they are safe, and if any private individual or corporation should do any work or erect any structure in the public highway which is dangerous and an injury follows from it, then the District authorities are liable, if they had timely notice of the danger so that they might have averted it and removed the obstruction. If the District is doing the work itself, through its own laborers, of course they have notice of any danger that attends the work, and they are presumed to know all about it. The are not presumed to know what other people do in the street or to know all the acts that could not have been foreseen, occasioned by storms, the elements, or any other way. They are not responsible for the result of any accident of that sort unless they have timely notice or unless the defect has been open to observation so long that they would have had notice if their officers had discharged their duty of observing the condition of the highway generally. ” — Reporter.