HOOD, Associate Judge.
On the morning of March 13, 1958, appellee Mrs. Zuber was driving her automobile on Beach Drive in Rock Creek Park when it was struck head on by a road roller which had gotten out of control and was proceeding on the wrong side of the road. The roller was the property of Corson & Gruman Co., a paving contractor, and was operated (or attempted to be operated) by Dews, an employee of the paving company. This action was brought by Mrs. Zuber and her husband against both the company and its employee for damages resulting
It is well settled, of course, that summary judgment cannot be granted where there is an issue of fact; and it is equally well settled that ordinarily questions of negligence and contributory negligence are questions of fact, and only in exceptional cases may such questions be decided as a matter of law. In Cox v. Pennsylvania Railroad Co., D.C.Mun.App., 120 A.2d 214, 216, where the trial court had held a plaintiff contributorily negligent as a matter of law, set aside a verdict in his favor and granted judgment n. o. v. for the defendant, we, in reversing, said:
Such being the law where both parties have presented their evidence and have had the opportunity of cross-examining opposing witnesses, the rule applies even more strictly to the grant of summary judgment. Thus it is said in 6 Moore, Federal Practice, § 56.17 (2d ed. 1953): "Issues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner." The foregoing statement has met with approval. See, for example, Roucher v. Traders & General Ins. Co., 5 Cir., 235 F.2d 423; Aetna Ins. Co. v. Cooper Wells & Co., 6 Cir., 234 F.2d 342.
In Cellini v. Moss, 98 U.S.App.D.C. 114, 116, 232 F.2d 371, 373, the court, in reversing summary judgment in a negligence case, had this to say:
Our question is whether the present case is such an exceptional case as to justify the grant of summary judgment. Appellants insist that there was a genuine issue of fact on the question of contributory negligence. In ruling otherwise the trial court had before it, in addition to the pleadings, a deposition taken by appellees of Dews, operator of the roller, and two photographs of the vehicles after the collision. Obviously the judgment was granted mainly on the strength of the deposition.
In considering the deposition we must take it as true and read it in the light most favorable to appellants. Cellini v. Moss, supra. Viewed in this light, the following facts are disclosed. The roller was out of control, proceeding on the wrong
On the above facts we think fair-minded men could draw different conclusions. It could be reasonably concluded that Mrs. Zuber when confronted by the sudden emergency and immediate peril did only that which a reasonable person would have done under the circumstances. On the other hand, if a jury found that Mrs. Zuber saw the situation, recognized the danger and had available time and space in which to turn her automobile from the path of the roller, it could reasonably be concluded that her act of stopping, instead of turning, constituted negligence. It follows that the granting of summary judgment was error.