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ment of Georgia. Mr. Larner testified that after accident that she walked into and was Mr. Cunningham, in response to a sugges- struck by left front mud guard of automobile, tion from the testatrix, “named over a num

without showing that defendant was driving at

an unlawful speed, held insufficient for submisber of institutions that he thought would be sion to jury of question of driver's negligence. proper for her to use in her will," and that Mr. Cunningham subsequently sent to

4. Municipal corporations Ow706(3)-Res ipsa

loquitur doctrine held inapplicable to pedesWashington a list from which Mr. Larner trian's injuries by automobile. prepared the will. Mr. Larner did not tes- Where one witness for pedestrian, struck tify, however, that the name of the First by automobile, testified that pedestrian was ly. Volunteer Regiment of Georgia was in that ing in middle of street in front of automobile, list. The presumption is that it was not, for other witness testified that she was lying in

and that automobile was facing south, and it was not inserted in the will, while the middle of street, near left rear mud guard, and name of the Seventh Georgia Regiment of that automobile was facing north, the doctrine Georgia was inserted. Moreover, this item of res ipsa loquitur was inapplicable, since must have attracted the particular attention ligence on part of driver.

neither testimony creates presumption of neg. of both Mr. Larner and the testatrix, since the word "Savannah” was deleted; this be- 5. Municipal corporations en 705(10)-Last

clear chance doctrine held inapplicable to in. ing done, as Mr. Larner testified, for the

juries to pedestrian by automobile. purpose of making the name of the benefi

In action for injuries to pedestrian struck ciary correspond to that in the list; and by defendant's automobile, in which there was seven years thereafter, as we already have no evidence tending to prove that driver had noted, the testatrix ratified and confirmed knowledge, or by exercise of ordinary care, her will “in every particular after a careful could have acquired knowledge, that pedestrian

was in position of peril prior to accident, docreading and examination thereof."

trine of last clear chance was not involved. The decree must be reversed, with costs, and the cause remanded, with directions to

Appeal from Supreme Court of District enter a decree in conformity with this opin- of Columbia. ion. Reversed and remanded.

Suit by Sarah A. Reaver against Serrelle L. Walch. Judgment for defendant, and plaintiff appeals. Affirmed.

B. L. Casteel and T. 0. King, both of

Washington, D. C., for appellee.
REAVER v. WALCH.

Before MARTIN, Chief Justice, ROBB, (Court of Appeals of District of Columbia. Associate Justice, and HATFIELD, Judge Submitted December 8, 1924. Decided of the United States Court of Customs ApJanuary 5, 1925.)

peals. No. 4117.

HATFIELD, Acting Associate Justice. 1. Municipal corporations Em706(3)-Pedes

trian has burden of proving negligent opera. The plaintiff brought suit in the court betion of automobile.

low to recover damages from the defendPedestrian, suing automobile driver for in- ant for personal injuries suffered by her juries sustained when struck by automobile, and alleged to have been occasioned by the had burden of proving that injuries resulted negligent and unlawful conduct of the defrom driver's failure to exercise degree of care demanded by circumstances.

fendant in the operation of his automobile.

It is averred in the declaration that, on 2. Municipal corporations 705(2)-Mutual January 25, 1923, plaintiff was walking on

rights and duties of pedestrian and automo-
bile driver stated.

the sidewalk on Twelfth street, between 0 Both pedestrian and automobile driver had and P Streets Northwest, in the city of right to use of streets, and each was required Washington, District of Columbia; that to exercise ordinary care, under the circum- while thus engaged, and without negligence stances, to preserve their safety and to avoid on her part, without warning or knowledge injuries to the other.

of the presence of defendant's automobile, 3. Municipal corporations am 706(6)-Evidence and solely by reason of the negligence of

of negligence of driver of automobile, strik. the defendant in the operation of his autoing pedestrian, held insufficient for jury.

mobile over and along Twelfth Street NorthPedestrian's evidence, showing merely that she had been struck by defendant's automobile, west, she was struck by the automobile of that following accident she was lying in middle the defendant and dragged for a long disof street, and that driver stated immediately tance along the street, and thereby sustain: 3 F.(20) 204 ed serious and permanent injuries. Issue that when he arrived at the place of the acwas joined upon the defendant's plea to the cident he inquired for the person who was declaration of "not guilty.”

operating the automobile when it struck On the trial the plaintiff testified that, plaintiff, and the defendant replied, “I am on January 25, 1923, at about 8 o'cloek at the one.” The witness then inquired of the night, she left her home at 1312 Twelfth defendant as to how the accident occurred, Street Northwest, in the city of Washington, and the defendant replied that the plainDistrict of Columbia, for the purpose of tiff walked into the automobile and was mailing a letter; that she remembered touch- struck by the left front mud guard. ing one of the pickets on the fence in front With this and other evidence as to the of her home, immediately after she had nature and extent of her injuries, plaintiff passed through and closed the gate leading rested her case. Thereupon counsel for the thereto; that her next recollection was that defendant moved the court for a directed she was in her room, in bed, and very se- verdict, and the court directed the jury to verely injured. The coat she was wearing return a verdict for the defendant. From that night was torn on the right side, her the judgment entered thereon plaintiff has right shoe torn at the vamp, and her eye- appealed. glasses were broken into several parts. She [1] In order to sustain an action of the further testified to the severity and perman- character brought by the plaintiff, it was ence of the injuries she sustained; that she necessary for her to establish by proper was 71 years of age, and prior to the acci- evidence that the injuries sustained by her dent was able to earn her living expenses. resulted from the failure of the defendant She disclaimed any knowledge of ever hav- to exercise the degree of care, in the operaing experienced "dizzy" spells.

tion of his automobile, demanded by the Plaintiff's witness, Mary Neal, testified circumstances attending the occurrences of that about 8 o'clock in the evening, on Jan- which she complains. uary 25, 1923, she was walking south on [2] The accident occurred in one of the Twelfth Street Northwest, near N street; public streets of the city. Each party had that she heard a “crash," and immediately the right to the use of the street, and each turned and ran up Twelfth street, and across was required to exercise ordinary care unN street, where she saw the plaintiff lying der the circumstances surrounding them at in front of an automobile, in about the cen- the time of the occurrences complained of ter of Twelfth street; that the automobile in the declaration, to preserve his or her was facing south towards N street; that two safety, and to avoid injury to the other. white men and a colored policeman carried The plaintiff established on the trial that plaintiff into her home. She did not see the she was severely injured by coming in conaccident.

tact with defendant's automobile. That she J. W. Braxton (colored), a member of wholly failed to prove that her injuries rethe metropolitan police department, was sulted from the negligent acts or wrongful called as a witness by the plaintiff. He tes- conduct of the defendant is evident from tified that on the night the plaintiff was careful consideration of the testimony subinjured he was standing on the northeast mitted by her. The only conflict in the evicorner of Twelfth and N Streets North- dence is as to the location of the plaintiff west; that defendant's automobile was trav- immediately after the accident. eling between 8 and 12 miles per hour, when The plaintiff's witness, Mary Neal, testiit crossed N street, at the intersection of fied that she was at the place of the acciTwelfth street; that the traffic regulations dent immediately after it had occurred, and limited the speed of automobiles to 6 miles that the plaintiff was lying in the middle of per hour while crossing intersecting streets; the street, in front of the automobile, and that shortly after the automobile passed the that it was facing south; while J. W. Braxwitness he heard a "crash," or a "scream”; ton, a witness for plaintiff, testified that he that he immediately turned and ran north was at the place of the accident immediateon Twelfth street to the place where the ac- ly after he heard a "crash” or “scream," and cident occurred, which was about 27 yards that the plaintiff was lying in the middle of north of N street, where he saw the plain- the street near the left rear mud guard of tiff lying in the middle of the street, near the defendant's automobile, and that the the left rear mud guard of defendant's automobile was facing north. automobile; that the automobile of defend- This witness related a conversation ho ant was facing north. He further testified had immediately after the accident with the defendant, in which he inquired as to "who tending to prove that the defendant had any was operating the automobile that struck knowledge, or by the exercise of ordinary the lady," and the defendant replied, “I am care could have acquired the knowledge, that the one;" that he then asked the defendant the plaintiff was in a position of peril prior how he came to strike the plaintiff, and the to the accident, and accordingly the doctrine defendant stated that she walked into the of the last clear chance is not involved in machine and was struck with his left front the case. 29 Cyc. 530, 531. mud guard, and that she was about in the There is no evidence that the defendant middle of the street when she came in con- was driving at an unlawful speed at the tact with the automobile. This is the only time and place of the accident; no evidence explanation presented as to how the acci- as to whether the street was lighted at that dent occurred.

point or was in complete darkness. It may [3] The facts therein related are undis- be inferred from the statements of the deputed, and in the absence of evidence of fendant, made immediately after the accinegligent conduct by the defendant are con- dent, that plaintiff was attempting to cross, sistent with the view that the defendant was and had reached the center of the street at exercising reasonable care and caution un- the time she came in contact with the autoder the circumstances surrounding the par- mobile. Did the defendant see her in time ties at the time of the accident. The defend- to have avoided the accident, or could he, ant was under no other legal obligation to by the exercise of ordinary care under the the plaintiff.

circumstances, have seen her in time, to have [4] With regard to the conflicting ex- prevented plaintiff walking into the car planations offered by the witnesses for the These were some of the questions conplaintiff as to her location immediately aft- cerning which evidentiary facts might have er the accident, we may say that either ex- been submitted on the trial. Had such eviplanation may be accepted without raising dence been introduced, issues of fact may any presumption of negligence on the part have been presented requiring determinaof the defendant. Therefore the doctrine of tion by a jury. The record presents quite a res ipsa loquitur cannot be invoked to aid different state of facts. the plaintiff. 29 Cyc. 623, 624.

The judgment is affirmed. [5] There is no evidence in the record Affirmed.

37 years.

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son.

8 F.(20) 207 WASHINGTON POST CO. v. KENNEDY. “According to Headquarters Detective (Court of Appeals of District of Columbia. Vermillion, who trailed Kennedy to Detroit, Submitted December 10, 1924. De- the man forged the name of a client for cided January 5, 1925.)

$900." No. 4142.

The plaintiff was generally known in the Libel and slander 21-Newspaper item re

District of Columbia as Harry Kennedy, porting arrest of "Harry Kennedy, an at. was the only lawyer that name in the torney,” held libelous as to “Harry F. Ken. District, and his age at that time was about nedy," only attorney in city. Newspaper item reporting arrest of "Har

The sole question here is whether the omisry Kennedy, an attorney, 40 years old," for forgery, held libelous as to “Harry F. Kenne- sion in this publication of the initials of dy," the only lawyer by that name in the Dis- the person actually arrested formed a legal trict, and about 37 years of age, where person basis for an action for damages by the plainin fact arrested was “Harry P. L. Kennedy,” tiff, to whom the article by reason of such and from Detroit, though publisher intended to refer to "Harry P. L. Kennedy."

omission was generally understood to refer, and to whom the jury found, under proper

structions the court, that the artiAppeal from Supreme Court of District cle did in fact refer. of Columbia.

The first case brought to our notice and Action by Harry F. Kennedy against the involving a similar question is Hanson v. Washington Post Company. Judgment for Globe Newspaper Co. (1893) 159 Mass. plaintiff, and defendant appeals. Affirmed. 293, 34 N. E. 462, 20 L. R. A. 856. There W. J. Lambert and R. H. Yeatman, both

an article was published designating the arof Washington, D. C., for appellant.

rested person as “H. P. Hanson.” The perA. H. Bell and P. H. Marshall, both of

son actually arrested was A. P. H. HanWashington, D. C., for appellee.

H. P. Hanson thereupon brought suit.

the case was tried without a jury, and the Before MARTIN, Chief Justice, ROBB, trial judge found as a fact that the alleged Associate Justice, and HATFIELD, Judge libel was not published of and concerning of the United States Court of Customs Ap- the plaintiff. În a five to four decision, the peals.

Supreme Court of Massachusetts sustained

this ruling. The minority opinion was writROBB, Associate Justice. Appeal from ten by Justice Holmes, now a Justice of the & judgment in the Supreme Court of the Supreme Court of the United States, whose District of Columbia for the plaintiff, ap- reasoning was the same as that of the court pellee here, in an action for libel.

in Jones v. E. Hulton & Co., [1909] 2 K. B. Harry P. L. Kennedy was arrested in D. 444. In that case a newspaper published Detroit, Mich., on a charge of forgery, and defamatory statements of a named person, returned to the District of Columbia, where believed to be a fictitious personage with an a memorandum of his arrest was made in unusual name, “Artemus Jones.” It develthe arrest book at police headquarters. This oped that there was a man named Thomas memorandum reads as follows:

Artemus Jones, who was generally known "Person arrested: Kennedy, Harry P. as Artemus Jones. He brought an action L Charge: Forgery. Lawyer.

for libel and a judgment in his favor was Complainant: Melville Bush, 109 affirmed. Corlers Ave., Athenhurst, N. J. Citizen U. Lord Chief Justice Alverstone expressed S. Single? Yes. Age: 40. Color:

B. the opinion that it was a question of fact Off.: Vermillion. Dis. given to U. S. mar- "whether the person referred to in the libel sbal. Date of complaint: May 12, 1923.” would be understood by persons who knew On the next day the defendant published him to refer to the plaintiff.

There in its newspaper the following article:

is abundant authority to show that it is not "Attorney Held as Forger.

necessary for every one to know to whom

the article refers; this would in many cases “Harry Kennedy Brought Back from De- be an impossibility; but if, in the opinion troit to Face Charge.

of a jury, a substantial number of persons "Harry Kennedy, an attorney, 40 years who knew the plaintiff, reading the article, old, was brought back to Washington from would believe that it refers to him, in my Detroit yesterday to face a charge of for- opinion an action, assuming the language to gery.

be defamatory, can be maintained; and it makes no difference whether the writer of a case as so well settled, in that state at the article inserted the name or description least, that no written opinion was filed. unintentionally, by accident, or believing We are impelled to adopt the reasoning of that no person existed corresponding with Justice Holmes and Lord Chief Justice Althe name or answering the description. If verstone, as the Court of Appeals of New upon the evidence the jury are of opinion York evidently has done. Unless the true that ordinary sensible readers, knowing the intent of the publisher of libelous matter plaintiff, would be of opinion that the arti- is to be gathered from the contents of the cle referred to him, the plaintiff's case is article, rather than from what the writer made out."

subsequently says was in his mind, innocent Lord Justice Farwell concurred in this parties may suffer without redress. This is judgment, while Lord Justice Moulton dis- requiring nothing more than accuracy on the sented. In his concurring opinion Lord part of the writer. To illustrate: AssumJustice Farwell said: “The rule is well set ing in the present case that the initials of tled that the true intention of the writer the Kennedy arrested had been the same as of any document, whether it be contract, those of the plaintiff, and that the police will, or libel, is that which is apparent from record had described the former as a resithe natural and ordinary interpretation of dent of Detroit, Mich., can it be that the the written words; and this, when applied publisher might escape liability for omitting to the description of an individual, means the description by stating that he intended the interpretation that would be reasonably to refer to the Detroit Kennedy, and not to put upon those words by persons who knew the local Kennedy? Or, assuming that the the plaintiff and the circumstances. • Kennedy arrested was described as an autoIn my opinion the defendant intended the mobile salesman, and that had been omitted natural meaning of his words in describing from the description. In each instance the the plaintiff as much as in the innuendo; the matter omitted would clearly have distininquiry is not, what did the defendant mean guished the two Kennedys, and the local in his own breast, but what did the words Kennedy would not have been harmed. So, mean having regard to the relevant sur

here, had the publication been accurate, rounding circumstances."

Harry F. Kennedy's friends would have In Joseph Larocque v. New York Herala known that it did not refer to him, and those Co. (Feb., 1917) 220 N. Y. 632, 115 N. E. that the writer did not mean him by refer

knowing him only slightly could have seen 1042, an action for damages for libel based

ring to a local directory. upon an article which was correct, except

The opinions of Justice Holmes and Lord that the name of John Larocque was er- Chief Justice Alverstone contain such a full roneously printed as "Joseph Larocque,” the and satisfactory discussion of the principles Court of Appeals of New York, six justices here involved that we forbear further dissitting, unanimously sustained a judgment cussion. The judgment is affirmed, with for the plaintiff. The court evidently re- costs. garded the plaintiff's right to recover in such Affirmed.

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