Opinion
No. 29461.
May 18, 1931. Suggestion of Error Overruled June 29, 1931.
1. AUTOMOBILES.
In crossing street or highway, pedestrian must exercise care which ordinarily careful man would exercise for his own safety under similar circumstances.
2. AUTOMOBILES.
Pedestrian is not required, under all circumstances, to look for approaching automobiles before crossing street or highway.
3. AUTOMOBILES.
Whether pedestrian struck by automobile while crossing highway in rural community was negligent in failing to look for approaching automobiles held for jury.
APPEAL from circuit court of Lee county; HON.C.P. LONG, Judge.
Geo. T. Chas. S. Mitchell, of Tupelo, for appellants.
Questions of negligence, contributory negligence and proximate cause are questions for the jury to determine, under all the facts of the case.
Byrnes v. City of Jackson, 105 So. 862.
A traveler is not necessarily negligent because he attempts to cross a street without first looking or listening to ascertain whether an automobile is approaching. Such a traveler has a right to assume that other persons using the highway with him will exercise a proper degree of care.
Pertell v. Jordan, 31 N.E. 652; Hennessey v. Taylor, 76 N.E. 224; McDonald v. Bowditch, 87 N.E. 585; Shapleigh v. Wyman, 132 Miss. 118; Thompson on Negligence (Suppl., p. 203); Rogers v. Phillips, 92 N.E. 327.
Blair Anderson, of Tupelo, for appellee.
It is the duty of a foot-passenger to look both ways before starting to cross a street, particularly when the street over which he intends to pass is a busy thoroughfare in the heart of the business district of a great city.
Thompson v. White, 56 Cal.App. 173, 204 P. 561; Davis v. Breuner Co., 167 Cal. 683, 140 P. 586 (1914); Mayer v. Anderson, 36 Cal.App. 740, 173 P. 174 (1918).
The plaintiff's duty in the exercise of reasonable care was, before she attempted to cross the highway, to look at the intersecting highways ahead of her and the highway behind in such manner and to such extent as a reasonably prudent person under like circumstances would look, so as to determine that no team, automobile, motorcycle, or bicycle was in such proximity if properly managed, as to endanger her safety in crossing.
Palmer v. Spencer, 96 Conn. 631, 115 A. 82; Deal v. Snyder, 203 Mich. 273, 168 N.W. 973 (1918); McCormick v. Hesser, 77 N.J.L. 173, 71 A. 55.
The rule of ordinary care apparently requires a pedestrian, before starting to cross a street between street intersection, to look for approaching vehicles.
Lowry v. Smith, 199 Mo. App. 163, 198 S.W. 437; Craft v. Stone, 124 N.E. 473; Harder v. Mathews, 67 Wn. 487, 121 P. 983.
One who attempts to cross a street diagonally at a point other than a crosswalk, having his ears covered and looking straight ahead, without heed to traffic on the street, is negligent, and cannot recover for injuries received by being run down by a passing team.
Peterson v. P. Ballentine Sons, 205 N.Y. 29, 39 L.R.A. (N.S.) 1147, 98 N.E. 202.
The pedestrian before crossing frequently traveled highway owes duty to himself as well as passing motorist to use every precaution before crossing a highway and the driver of motor vehicles have a right to presume that a pedestrian would exercise the care required of him.
Knapp v. Barrett, 110 N.E. 428; Peterson v. Vallentine, 205 N.Y. 28, 98 N.E. 202; Mastin v. City of New York, 201 N.Y. 81, 94 N.E. 611.
It was negligence as a matter of law for Mrs. Hall to attempt to cross this frequently traveled highway without exercising her faculties of sight and hearing.
Knapp v. Barrett, 110 N.E. 428; Moss v. Boynton, 44 Cal.App. 474, 186 P. 631; Berry Automobile (4 Ed.), section 317.
Ordinarily the degree of negligence attributable to injured persons is a question for the jury but where the person injured exercised no care whatever for his own safety then the court can by instruction characterize his negligence as gross.
G. S.I.R.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954.
Mrs. Hall, while walking toward the east on one side of a public highway in a rural community, the extent of the traffic on which does not appear, attempted to cross to the other side of the highway, and was struck and killed by an automobile, going west, owned by the appellee and driven by his servant; and this suit is by her heirs for the recovery of damages for her death. There was a verdict and judgment for the appellants for two hundred and fifty dollars, from which they have brought the case to this court.
The appellants' complaint is that the judgment is inadequate, caused, they say, by the following instructions granted the appellee:
"The court instructs the jury for the defendant that Mrs. Hall was guilty of gross negligence if she crossed the highway without looking for approaching cars and trucks."
"The court instructs the jury for the defendant that if Mrs. Albert Hall saw or could have seen the approaching truck by reasonable care and attempted to cross the highway without looking for danger, she was guilty of negligence which contributed to her death; and if you should find for the plaintiffs, then you must diminish their damages in the proportion that Mrs. Albert Hall's negligence bears to that of the defendant."
In crossing a street or highway, a pedestrian must exercise that care which an ordinarily careful and prudent man would exercise for his own safety under similar circumstances; but there is no absolute rule of law requiring a pedestrian under all circumstances to look for approaching automobiles before crossing a street or highway. Whether he should do so, to some extent, "necessarily depends on the amount of traffic to be expected at the place where he is crossing. What might be considered a reasonable precaution when crossing a highway in a rural community might be considered as gross negligence in the case of a pedestrian crossing a crowded thoroughfare in a large city." Huddy, Automobile Law, 5, 6 (9 Ed.), p. 142. "Whether, . . . in any given situation, the duty of stopping, looking, and listening before crossing a street rests upon the pedestrian with reference to passing automobles is not oridnarily determined by the courts as a matter of law. His failure to look and listen for motor vehicles before starting to cross is not necessarily negligence; but whether it is so or not is (ordinarily) a question of fact to be submitted to the jury and shown by proof of the circumstances surrounding the particular case." 2 Blashfield, Cyc. of Automobile Law, p. 1031.
The case here presented is that of a pedestrian crossing a highway in a rural community without evidence as to the extent of the traffic thereon; and, whatever the rule may be as to the absoluteness of the duty of a pedestrian to look before crossing a crowded street or highway — as to which we express no opinion — that question should here have been left to the determination of the jury. The instructions hereinbefore set out should not have been given.
The judgment of the court below will be reversed in so far as it fixes the amount of damages, and will be remanded for a new trial on that question only.
Reversed and remanded for reassessment of damages.