DocketNumber: No. 2697
Citation Numbers: 62 F.2d 479
Judges: Bingham, Morton, Wilson
Filed Date: 12/29/1932
Status: Precedential
Modified Date: 7/23/2022
This is an action of tort brought to recover damages for personal injuries sustained by the plaintiff on the 7th day of October, 1918, through the negligence of the defendant wherein her right leg was injured, necessitating amputation at or near the knee.
The action was brought in the District Court of San Juan, January 24, 1919. August 9, 1920, that court found a verdict and entered judgment in favor of the plaintiff. An appeal was taken to the Supreme Court of Puerto Rico, and on April 17, 1923, the judgment appealed from was reversed, and the ease remanded with leave to amend the plaintiff’s complaint and for a new trial. The chief ground for reversal appears to have been that the complaint failed to disclose any duty due the plaintiff calling upon, the defendant to reduce the speed of its street ear or to ring the bell; that it should have set forth that the place where the accident happened was one where the defendant should have foreseen that the plaintiff and other members of the public might be, and that,. if the motorman had exercised reasonable care, he would have seen the plaintiff in time to have avoided the accident. After the ease was sent back to the District Court, the plaintiff, on May 19, 1923, amended her complaint. April 25, 1925, the defendant filed its answer, which contained a general denial, and, as a special defense, pleaded contributory negligence. June 3,1926, the second trial was begun. The District Court again found in favor of the plaintiff, and, on February 20, 1928, entered judgment in her favor. On February 20, 1928, the case was again appealed to the Supreme Court, which, on July 24, 1931, after reviewing the evidence, found in favor of the plaintiff and entered judgment affirming the judgment of the District Court of February 20, 1928. It is from the judgment of July 24, 1931, that the defendant, the Porto Rico Railway Light & Power Company, prosecutes its appeal, to this court.
There are nineteen assignments of error. They are poorly drawn, and some of them so inept that it is difficult to know just what is really assigned. Others would indicate that the draftsman thought the facts were open to review here on the weight of the evidence. But this is not so. Our jurisdiction on appeal from the Supreme Court of Puerto Rico in an action at law is limited to reviewing questions of law. We think, however, that, so far as they are pertinent, they may be reduced to the following: (1) That the Supreme Court erred in holding that the facts found were sufficient to warrant the application of the doctrine of the last clear chance; (2) in holding that the doctrine of the last clear chance is applicable where the facts disclose that the defendant should have known of and anticipated the plaintiff’s presence in a dangerous situation and exercised due care to avoid injuring her—that that doctrine is only applicable where the defendant is found to have seen and known of the plaintiff’s presence in a dangerous situation; and (3) if the facts found by the Supreme Court were sufficient to warrant the application of the doctrine, there was no evidence from which those facts could be found.
The facts found by the Supreme Court, as far as we can determine from its opinion, are in substance the following: That on the day of the accident the defendant was operating its street car in the municipality of San Juan along Ponce de Leon avenue from stop 20 to stop 19 in a thickly populated section of the city; that stop 20 (the direction from
It has been the recognized rule in this circuit since 1914 that, 'in a situation like the one here found to exist, the last clear chance doctrine applies, although the defendant may not have seen and known of the dangerous situation of the plaintiff, if circumstances existed from which he should have anticipated
The doctrine of the last clear chance was therefore applicable to the facts found by the Supreme Court of Puerto Rico in this ease, and this was so, even though the defendant’s motorman was not shown to have seen and known of the plaintiff’s dangerous situation before he ran upon her, for the evi- . dense and the facts found clearly disclose circumstances from which he should have anticipated that the traveling publie, of which the plaintiff was one, was liable to be going down this path in the locality where she was, and was negligent in not being on the lookout and avoiding injuring her, which the facts show he reasonably could have done after she was in a position from which, by the exercise of reasonable care, she could not have avoided the peril.
The Supreme Court, in Kansas City Sou. Ry. v. Ellzey, 275 U. S. 236, 241, 48 S. Ct. 80, 81, 72 L. Ed. 259, states the doctrine of the last clear chance as follows: “That doctrine, rightly applied in the Chunn Case [207 U. S. 302, 28 S. Ct. 63, 52 L. Ed. 219], amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it only through carelessness, .had in fact a later opportunity than the plaintiff to avert an accident.” See, also, Little v. Boston & M. Railroad, 72 N. H. 502, 57 A. 920.
This disposes of the questions raised by the first two assignments of error above stated.
The remaining question is whether there was evidence from which the Supreme Court could have found the facts that it did. That court, in finding the facts, in substance recounted the evidence upon which the facts were based, though perhaps not in such detail as the evidence itself discloses. The evidence shows that, as the plaintiff came out the gate of the Barletta house and turned to the left down the passageway, the car, which had previously stopped at stop 20, was starting or was on its way down the grade; that the passageway, at this point, was only 10 feet long; and that, after the plaintiff had taken a few steps down it, the ear must have been almost upon her, so that it was not probable that she could have avoided the danger by the exercise of due care; that thereafter she in fact went but a few steps before being struck by the ear, she not then having reached the end of the passageway.
Then again there was abundant evidence that this passageway was one which the pub-lie had used for at least twenty-five years in going forward and back between step 20 and stop 19; that the people living in the houses in that locality had continually used it in going to stops 19 and 20; that the defendant and its motormen had known of the passageway and its use by the publie for a, long period of time, and knew that their street ears when run past it rendered the passageway dangerous; that it was the custom of the motormen to sound the bell when approaching the locality, and this custom was generally known and relied upon; that the passageway was not only narrow, but a passing car with its sides projecting outside the rail, as it is common knowledge they do, would render it practically certain'that persons using the passageway would be struck if a ear passed them while there. The evidence indicates that the car was traveling about three times( as fast as the plaintiff was walking, and could have been stopped within a meter (about 3 feet and 3 inches) and the accident avoided at any time up until after the ear was within 3 or 4 feet of her. There was evidence in support of the findings.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee.