(dissenting).
I think the judgment should be affirmed. Since appellant offered no objection, at the trial, to the court’s charge concerning the last clear chance, its correctness is not before us. Yet the last clear chance doctrine is involved in the question that is before us. That question is whether the District Court should have granted appellant’s motion for a directed verdict. I think the court rightly denied the motion.
There was substantial evidence, essential parts of which are not mentioned in the opinion of this court, that the accident was caused by the negligence of the operator of the eastbound streetcar which struck ap*720pellee. Though there was evidence that appellee was guilty of contributory negligence, her negligence, like that of the operator, was a question for the jury. Moreover I think she was entitled to have the case submitted to the jury, as it was, on the theory of the last clear chance. Schear v. Ludwig, 79 U.S.App.D.C. 95, 143 F.2d 20. For there was substantial evidence that the accident was caused by negligent delay on the part of the operator in applying his brakes after he knew or should have known of appellee’s danger and her obliviousness to it.
As the court states, the eastbound and westbound cars started passing each other near the center of the intersection and the eastbound car, which struck appellee, was then traveling at 10 to 12 miles an hour. There was evidence that the westbound car was traveling at about 10 miles an hour. If the speed of each was 10 miles an hour the two passed each other at the rate of 20 miles an hour or 29% feet a second. At that rate, about 1% seconds were required for the front of the eastbound car to pass the entire westbound car, since it was 44 feet long. During that time the eastbound car traveled, at 10 miles per hour or 14% feet a second, about 22 feet. Since the space between the crosswalks was 70 feet and the cars began to pass each other near the middle of this space, it follows that the front of the eastbound car was about 13 feet (35 minus 22) west of the east crosswalk when the westbound car ceased to obstruct the eastbound operator’s view of any part of the street ahead.
Appellee was about 4 feet east of the east crosswalk when she was struck. The crosswalk was 20 feet wide. If, as several witnesses testified, appellee was running south across the car tracks, and if the rest of the above testimony is true, the eastbound car was about 37 feet (13 plus 20 plus 4) west of appellee when she became fully visible to its operator. The car could be stopped in 17 feet.
The jury were entitled to believe the above testimony. To believe it is to accept the italicized conclusion, since that conclusion follows from it arithmetically. Once that conclusion is accepted, there is ample evidence that the operator saw or should have seen appellee in time to avert the accident. The court rejects the italicized conclusion, and therefore reverses the judgment. The court assumes the truth of the operator’s testimony that the westbound car prevented him from seeing appellee until he was only 10 feet away from her; despite the fact that the operator contradicted his own testimony, in effect, by conceding that he passed the front end of the westbound car at about the middle of the street intersection and that the lengths and speeds of the cars were as stated above, and yet asserting that he did not pass the rear end of the westbound car until he was in the center of the crosswalk.
The evidence supports an inference that the eastbound operator did not apply his brakes until he had traveled 46 feet, which is more than a car-length, after appellee became fully visible to him.1 If the car was going 10 miles per hour or 14% feet per second, this means a delay of more than three seconds in applying brakes. If, as the jury might find, appellee’s obliviousness to danger was reasonably apparent (from her running toward the car’s path) as soon as she could be seen, any such delay was plain*721ly negligence. It is an understatement to say that the jury might reasonably think it negligence. The operator should have been ready to apply brakes almost instantly, for appellant’s rules required him to have his foot on the brake pedal when he was passing another car. Three seconds, during which the operator is shown by substantial evidence to have done nothing, is the time it takes an automobile traveling at 40 miles an hour to go 176 feet. Obviously any normal driver begins using his brakes in far less time than that after occasion arises.2
If the operator was negligent in not sooner applying brakes when appellee’s obliviousness to her peril was reasonably apparent, the last clear chance doctrine applies, provided there was evidence that a reasonably prompt application of brakes would have avoided the accident. There was such evidence. Several witnesses testified that appellee was running south across the track. In that case, since she was nearly out (south) of the car’s path when she was struck by the south edge of the car, the car would apparently have passed her without touching her if brakes had been applied even a small fraction of a second sooner than they actually were applied, and nearly three seconds later than the moment at which appellee became fully visible.3
Though appellee testified that she was running east, and that the motorman was “pushing his brakes” before the car struck her, the jury were entitled to find, on the basis of the contrary evidence, that she was running south and that the car struck her before brakes were applied. Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328. Even if her testimony were accepted as correct, the verdict would still stand. Since she did not see the car until it was within about 3% feet of her the brakes might, consistently with her testimony, have been first applied when the car with within about 4 feet of her. That would mean a delay of some 33 feet, or more than two seconds, in applying the brakes.
The Supreme Court has repeatedly reversed appellate courts that overturned jury verdicts supported by evidence as this court is doing in this case. In a recent case of this sort the Supreme Court said: “The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. * * * Once there is a reasonable basis in the record for concluding that there was negligence which caused the injury, it is irrelevant that fair-minded men might reach a different conclusion. For then it would be an invasion of the jury’s function for an appellate court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. * * * And where, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury.” Ellis v. Union Pacific Railroad Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600. This court’s disregard of these principles in the present case goes to the authority of the Supreme Court as well as the integrity of the jury system.
According to testimony based on actual measurement, the car did not stop until its front was 30 feet east of the crosswalk. If it was traveling at 10 miles' an hour its “braking distance” was about 17 feet, i.e. it could be stopped within 17 feet after brakes were applied. This means they were not applied until the car was some 13 feet east of the crosswalk and consequently 9 feet east of the point where appellee had already been struck. Since the crosswalk was 20 feet wide, if the car was 13 feet west of the crosswalk when appellee became fully visible to the operator the car traveled some 46 feet (13 plus 20 plus 13) between that time and the time when the operator applied his brakes.
The operator himself admitted that the car did not stop until it had traveled 15 feet after striking appellee. This amounted to an admission that he did not apply his brakes until he was within 2 feet of her. If, as the jury might find, she was 4 feet east of the crosswalk at that time, the car had then traveled 35 feet (13 plus 20 plus 2), or 2% seconds, from the point 13 feet west of the crosswalk at which appellee'became fully vis-, ible.
“Complex reaction time,” in which an operator is required to make the appropriate physical movements in response to a variety of signals appearing at random intervals, has been found to average, under laboratory conditions, about 0.60 second. In an “actual driving situation * * * the average reaction time is likely to be around 0.75 second. The average driver’s reaction time is, then, actually a split second!” American Automobile Ass’n, The Driver, p. 24 (1944). At 10 miles per hour, this means about 11 feet.
Even if, as appellee testified, she was not crossing the track but was running east along it, the operator could have delayed more than a second in applying brakes and still have avoided the accident. Eor if brakes had been applied when appellee became fully visible and the car was 13 feet west of the crosswalk, it would have stopped some 20 feet before it reached the point where appellee was struck (13 plus 20, the width of the crosswalk, plus 4, appellee’s distance east of the crosswalk, minus 17, the braking distance).