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06/20/67 Delmar R. Aylor Et Al., v. Nty Construction

June 20, 1967




Fahy,* Tamm and Robinson, Circuit Judges.


Petition for Rehearing En Banc and for Rehearing before the Division Denied September 6, 1967.


Tamm, Circuit Judge (dissenting).


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. *fn1 The action was tried to a jury and at the conclusion of appellants' case in chief, a verdict for Intercounty and Ross, the appellees, was directed on their motion, the District Judge expressing the opinion that the evidence could not support a finding that appellees were negligent or that any negligence on their part was proximately related to the accident. This disposition we test, as we must, upon the view of the evidence most favorable to appellants. *fn2

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. *fn3 While efforts were being made to fasten the chain on, *fn4 a car driven north-wardly by Tinsley collided with the rear of the compressor, knocking it against Aylor's leg and so injuring it as to necessitate eventual amputation.

In resolving the issue confronting us, we turn to the District Judge's analysis of the evidence made prefatorily to direction of the verdict. He felt that Ross, "bowing to the authority of the plaintiff," had stopped the truck on Aylor's second signal; that Aylor, after calling Ross' attention to the defective tongue, had "suggested that right there, without moving anywhere else, steps be taken to fasten the compressor to the truck more securely"; and that Aylor had "started to assist him in accomplishing the desired result" and while doing so suffered his injuries. "Under these circumstances," he said, "the Court is unable to conclude that there is any basis upon which the jury would be justified in finding the defendants before the Court either guilty of negligence or that their negligence was the proximate cause of the accident."

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. *fn5 This aside, Aylor testified that he tried to stop the truck and compressor in an area which would have left traffic unimpeded, but that Ross continued somewhat beyond that point; and as the trial judge recognized, there was ample proof for a determination that the rig was illegally parked, exposing those in its immediate vicinity to a foreseeable peril of bodily injury emanating from moving traffic. *fn6 The jury might have found that Ross picked his parking spot independently of any direction Aylor gave, *fn7 or that in any event had Ross followed Aylor's signal more closely, no hazard from vehicles on North Capitol would have been created.

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. *fn8 A jury might have disregarded Aylor's version, but it might also have said that Aylor's participation extended no further than advice, and that the decisions and the activities were Ross' own. And the jury might also have ...

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