Petition for Rehearing En Banc and for Rehearing before the Division Denied September 6, 1967.
Delmar R. Aylor and his wife, the appellants, sued in the District Court for injuries Aylor sustained in an accident allegedly caused by the concurring negligence of Clifton Ross, an employee of Intercounty Construction Corporation, and one Leon A. Tinsley.
The accident occurred on North Capitol Street, a north-south roadway, at its intersection with Bryant Street. At the time, a portion of North Capitol north of Bryant was undergoing reconstruction into a multi-lane thoroughfare, the eastern half of which was unfinished. The western side had been completed and, with a dividing line painted on the surface to create two lanes, was accommodating both northbound and southbound traffic. South of Bryant, North Capitol remained a narrower street. Vehicles northbound on North Capitol thus had to veer to the left at Bryant in order to gain access to the northbound lane on the western portion of the newly constructed roadway.
Aylor was a construction inspector for the District of Columbia Department of Highways and Traffic, and Intercounty was a subcontractor on the project. Shortly before the accident, an Intercounty inspector instructed Ross to relocate an air compressor, which was mounted on wheels and attached by a steel tongue to the rear of a truck. This order, with the exigencies of the construction, required Ross to tow the compressor southwardly on North Capitol, negotiate several turns, and follow the North Capitol northbound traffic pattern beyond Bryant to his destination.
As Ross proceeded to the south, Aylor and another construction inspector unsuccessfully endeavored to stop him upon observation that the compressor was acting erratically. Aylor signaled again when Ross returned in the northbound lane. This time Ross stopped, not at the spot indicated by Aylor, where the rig would have been out of the line of traffic, but in the North Capitol-Bryant intersection, partially blocking the northbound lane of North Capitol. As a consequence, vehicles proceeding northwardly on North Capitol were forced to travel around the left side of the truck and compressor.
Aylor told Ross that the compressor was coming loose and that he thought that Ross should attach a safety chain. Ross got out of the truck, and Aylor pointed out what he had observed. The tongue had partially broken in the middle, with but a thin lip of metal preserving the connection. The weakness permitted the compressor to move back and forth against the truck as its speed varied, and this action in turn was causing the tongue to buckle.
Ross felt that he could continue since he had only a short distance to go, but Aylor repeated his suggestion that a chain — one was on the truck — should be used.
In resolving the issue confronting us, we turn to the District Judge's analysis
While we recognize the reasonableness of this assessment of the evidence, the fact is that it was susceptible of yet another interpretation that legitimately could have appealed to the jury. Our reading leaves us unclear as to the precise limits of Aylor's authority and responsibilities over the movements of the compressor or just what thoughts Ross entertained on that subject.
While, after Ross stopped, Aylor called Ross' attention to the defective tongue and counseled the installation of a safety chain, the evidence did not compel a finding that he ordered Ross to discontinue his journey until this was done. Moreover, while Aylor was nearby during the attachment of the chain, there remained the question whether he supervised or engaged in the operation. Indeed, Aylor testified that he did not command the use of a chain and did not assist Ross in his efforts to connect it.
The direction of verdict for appellees cannot survive an application of settled principles. "Only where the probative facts are undisputed and where reasonable minds can draw but one inference from them does the question become one of law for the court. * * * Where, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury."
We deem it appropriate also to comment, for the future guidance of the trial court and the parties, upon another aspect of the case. We are told
Reversed and remanded.
TAMM, Circuit Judge (dissenting):
I am of the view that the trial judge was correct in directing a verdict for appellees at the conclusion of the appellants' case. An appraisal of the evidence offered by the plaintiffs-appellants is to me convincing that there was not sufficient evidence on the part of the appellants to permit the case to be submitted to the jury. This appraisal, moreover, establishes to my satisfaction as a matter of law that there was no evidence whatever to show that the conduct of these appellees was a proximate cause of the unfortunate injuries to the male appellant. In addition to these factors, I feel that the evidence presented clearly established a defense of assumption of risk in favor of the appellees. I would affirm.
See also supra notes 3 and 4.