PRYOR, Chief Judge:
These are cross-appeals from a final judgment following an order granting a new trial in a personal injury action. Plaintiff seeks to reinstate a $65,000 jury verdict in her favor. Defendant has cross-appealed.
On April 9, 1979, the plaintiff, Mrs. Patricia A. Bell, suffered injuries when her foot suddenly became caught in Escalator Number Five at the Eastern Market Metrorail Station, causing her to fall. Escalator Number Five was manufactured by Westinghouse Electric Corporation ("Westinghouse"), which purportedly maintained the apparatus pursuant to a service contract with Washington Metropolitan Area Transit Authority ("WMATA"). On November 9, 1979, plaintiff commenced a civil action (No. 14410-79) against both WMATA and Westinghouse seeking to hold both defendants jointly and severally liable for the injuries she sustained in the escalator incident. WMATA filed an answer to the complaint and a cross-claim against Westinghouse; Westinghouse also answered but never filed any cross-claim against WMATA. On December 2, 1981, the initial date set for trial, WMATA moved to dismiss the complaint against it for lack of jurisdiction. Westinghouse did not oppose this motion. The court granted WMATA's motion on the ground that the United States District Court for the District of Columbia had exclusive jurisdiction over actions brought against WMATA. On January 25, 1983, trial commenced on plaintiff's personal injury claim against Westinghouse as sole defendant. Westinghouse interposed no objection to the action commencing solely against it.
On January 26, 1983, this court rendered its decision in Qasim v. Washington Metropolitan Area Transit Authority, 455 A.2d 904 (D.C.1983), holding that in addition to the specific grant of original jurisdiction found in the Washington Metropolitan Area Transit Authority compact, the Superior Court for the District of Columbia also has jurisdiction over actions brought against WMATA. Westinghouse immediately moved for a mistrial which the court denied without prejudice. The next day, the jury returned a $65,000 verdict for plaintiff against Westinghouse.
After trial, Westinghouse filed a timely motion seeking, in the alternative, a judgment n.o.v., a new trial, or a remittitur. Among other things, Westinghouse argued that a new trial was appropriate because it had been "prejudiced" by the absence of WMATA at trial. The trial court agreed and granted a new trial. The court did this before plaintiff had had an opportunity to oppose the motion. After plaintiff moved for reconsideration of the trial court's ruling, the court entered an order reaffirming its earlier grant of a new trial. Since plaintiff took no steps to have WMATA reinstated as a defendant, and since Westinghouse did not file a third-party complaint against WMATA, the action proceeded to a second trial against Westinghouse alone. At the second trial, Mrs. Bell put on minimal evidence and a directed verdict resulted against her. These cross-appeals followed.
On appeal, Mrs. Bell seeks reversal of the order granting a new trial and reinstatement of the jury verdict. She asserts that Westinghouse was not prejudiced by the dismissal of WMATA before trial because
Super.Ct.Civ.R. 59 broadly sets forth the criteria for granting a new trial:
New trials may be granted, for example, where the verdict is against the weight of the evidence, damages are excessive, the trial was unfair, or there was a prejudicial legal error in the proceedings. Baber v. Buckley, 322 A.2d 265, 266 (D.C. 1974); 11 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2805, at 37-38 (1978).
It is generally held that a trial court has the power to order a new trial when such action is needed to "prevent injustice." 11 WRIGHT & MILLER, supra, § 2805, at 38. The granting of such a motion is within the discretion of the trial court and the scope of appellate review is limited to determining whether there has been an abuse of discretion.
Westinghouse asserted in its motion for a new trial, and continues to assert on appeal, that it was prejudiced by WMATA's dismissal, as that dismissal relates to plaintiff's use of the doctrine of res ipsa loquitur.
Indeed, this approach would preclude a plaintiff in a negligence action, where more than one tortfeasor is allegedly involved, from using the res ipsa loquitur doctrine
Westinghouse's subtantive right of indemnification or contribution has in no way been affected by Mrs. Bell's jury verdict. See Hall v. General Motors Corp., 207 U.S.App.D.C. 350, 360, 647 F.2d 175, 185 (1980) (pre-trial settlement between plaintiff and one joint tortfeasor does not deprive other tortfeasor of genuine contribution); Knell v. Feltman, 85 U.S.App. D.C. 22, 24, 174 F.2d 662, 664 (1949) (joint judgment against tortfeasors not a prerequisite to contribution between them). Westinghouse has not articulated to this court what it believes its rights are against WMATA. Since we do not know whether Westinghouse's theory of recovery sounds in tort or contract we do not have to reach the issue raised in General Elevator Co. v. District of Columbia, 481 A.2d 116 (D.C. 1984).
Secondly, Westinghouse moved for a new trial on a general assertion of prejudice. To date, Westinghouse implies but has never directly asserted that WMATA was an indispensable party, under Super.Ct.Civ.R. 19(a),
A party is prejudiced at trial when a legal ruling adversely affects its legal rights. Since WMATA was not an indispensable party, Westinghouse had no right to have WMATA joined as a defendant. Accordingly, WMATA's dismissal from the case
We observe that in its order the trial court stated:
This balancing was inadequate since the trial court neglected to also weigh the plaintiff's very significant interest in not having her jury verdict set aside. Moreover, as previously stated, Westinghouse was not prejudiced by WMATA's dismissal. In sum, we find the court did not exercise
The conditions which must be satisfied for the application of the doctrine of res ipsa loquitur are as follows:
PROSSER, LAW OF TORTS § 39, at 214 (4th ed. 1971), cited with approval in Sullivan v. Snyder, 374 A.2d 866, 867-68 (D.C. 1977); see Washington Sheraton Corp. v. Keeter, supra, 239 A.2d at 622. We conclude that these conditions were satisfied and therefore the trial court correctly instructed the jury on the applicable law.
In the instant case the escalator was manufactured and installed by Westinghouse, which purportedly maintained it pursuant to a contract with WMATA. The fact that WMATA and Westinghouse exercised joint control over the escalator does not preclude the application of res ipsa loquitur. Id.
Mrs. Bell testified that she got on the escalator and rode three quarters of the way down when she suddently felt something "tugging" at her shoe. When she tried to pull the heel of her shoe free, the heel broke off causing her to fall the rest of the way down the escalator. Plaintiff offered into evidence at trial the heel of her sandal which showed damage from its being grasped by the escalator treads. These facts support an instruction on res ipsa loquitur. In Levy v. D.C. Transit System, Inc., 174 A.2d 731, 733 (D.C.1961), we stated, the doctrine of res ipsa loquitur applies where "direct evidence of negligence is lacking, or where there is `little evidence,' or where the cause of the injury is left in doubt by the evidence or not clearly shown." (Footnotes omitted.) See Washington Sheraton Corp. v. Keeter, supra, 239 A.2d at 620 (affirming trial court's instruction on res ipsa loquitur where escalator suddenly lurched forward, throwing plaintiff down several stairs and causing various personal injuries); see also Quin v. George Washington University, 407 A.2d 580 (D.C.1979); Simmons v. City Stores Co., 412 F.2d 897 (5th Cir.1969); Sanone v. J.C. Penney Co., 17 Utah.2d 46, 404 P.2d 248 (1965); J.C. Penney Co. v. Livingston, 271 S.W.2d 906 (Ky.1954). We conclude the trial court properly instructed the jury on the doctrine of res ipsa loquitur.
Finding no basis for Westinghouse's assertions of prejudice, we conclude that the trial court abused its discretion in granting a new trial. Accordingly, we reverse and remand for reinstatement of the jury's verdict.