recognizing that even though the plaintiff-pedestrian clearly had the right of way, "such pedestrian is still under the legal duty to exercise ordinary care for his own safety; and whether he has done so in a particular case is a jury question where the evidence is conflicting"Summary of this case from Anderson v. Schmidt
Decided November 27, 1934.
Negligence — Pedestrian injured by automobile at street intersection — City ordinance giving pedestrian the right of way — Creates preferential but not absolute right — Pedestrian to exercise ordinary care — Question for jury, whether ordinary care exercised.
A city ordinance, the applicable part of which provides "The right of way upon street crossings * * * shall, in all cases, be given to pedestrians by all vehicles of every kind", creates a preferential but not an absolute right in favor of the pedestrian. Such pedestrian is still under the legal duty to exercise ordinary care for his own safety; and whether he has done so in a particular case is a jury question where the evidence is conflicting. ( Morris v. Bloomgren, 127 Ohio St. 147, distinguished.)
ERROR to the Court of Appeals of Hamilton county.
Samuel Eurove brought suit for damages against Jacob Horwitz in the Court of Common Pleas of Hamilton county, on account of personal injuries sustained when run into by an automobile driven by Horwitz. Eurove will hereinafter be referred to as plaintiff, and Horwitz as defendant.
The evidence showed that the collision occurred about 7:45 a. m. on September 9, 1932, while plaintiff was walking across Burnet avenue, from the east to the west side thereof, where Piedmont street runs into it from the west, in the city of Cincinnati. He was using the crossing to the south designated for pedestrians. Burnet avenue is a paved public thoroughfare about thirty-five feet wide, running in a general northerly and southerly direction, and containing double street car tracks. It was a clear, bright morning and traffic was light. There was no traffic signal of any kind at the crossing.
Among plaintiff's witnesses there were two who claimed to have seen the collision. They testified that a street car was coming from the north over Burnet avenue, on the west track, at a moderate rate of speed, and that defendant's automobile, proceeding behind it in the same direction, came from behind the street car to the right and struck plaintiff when the latter was about two or three feet from the west curb of Burnet avenue and had almost completed the crossing.
Plaintiff testified that while crossing Burnet avenue he looked to the north and saw the street car, but no automobile, and that he was struck by defendant's automobile when "a couple of feet" from the west curb of Burnet avenue.
One of plaintiff's witnesses to the collision placed the speed of the automobile at "around thirty-five miles an hour." He first testified that plaintiff looked straight ahead as he was crossing the street but later changed this testimony by saying plaintiff looked to the north while crossing. The other witness stated that the automobile was going "pretty fast" and "a little too fast," and that at all times he had him in view plaintiff was looking straight ahead. Both witnesses agreed that when defendant's automobile came from behind the street car to go around it, the street car was about fifty feet north of Piedmont street, and that they did not hear defendant give any warning of his approach.
In defendant's automobile, beside himself, were his daughter and three of her girl friends on their way to high school. The testimony of all of them was to the effect that the automobile was proceeding south on the right side of Burnet avenue, near the center of the street; that it was going slowly — fifteen to twenty miles per hour; that no warning signal was given and that they did not see plaintiff at any time until just before he was struck. One of the defendant's witnesses testified positively there was no street car in front of them as they approached Piedmont street, while defendant and two of his witnesses testified they did not remember seeing any. Defendant and his witnesses placed the location of plaintiff's body immediately after the collision just to the west of the west street car tracks, or on the most westerly rail.
In his petition the plaintiff pleaded an ordinance of the city of Cincinnati prescribing limitations as to the speed of vehicles and street cars in particular localities, and also the following city ordinance:
"Right of Way. Section 680-61. The right of way upon street crossings and on the space from the nearest curb to and from a safety zone shall, in all cases be given to pedestrians by all vehicles of every kind, except as provided in Section 680-56 [relating to fire and police department vehicles]. At intersections where traffic lights are operating, vehicles shall have the right of way over pedestrians when said vehicles are passing straight across the intersection on the green lights."
These ordinances were also introduced in evidence.
Defendant's answer was in the form of a general denial, except for admitting the fact of the collision.
At the close of all the evidence, the trial court gave the following special charge, at the request of plaintiff:
"The court charges the jury that if the plaintiff in crossing Burnet avenue at or just prior to the accident, exercising that degree of care that would be exercised by an ordinary prudent man, under the same or similar circumstances, then the plaintiff would not be guilty of contributory negligence."
The following special charges were also given, at the request of the defendant:
"1. If you find from the evidence that the plaintiff's own negligence directly caused or contributed in the slightest degree to cause the injuries complained of, then your verdict must be for the defendant.
"2. I charge you that it was the duty of plaintiff while crossing Burnet avenue to exercise ordinary care, and if you find that the plaintiff failed to do so, and that the failure so to do was the direct cause or a direct contributing cause, then your verdict must be for the defendant."
Exceptions were noted by respective counsel to all of these special charges.
At the request of defendant the following special interrogatories were submitted to the jury:
"1. Did the plaintiff look to the north after passing the center line of Burnet avenue?
"2. If plaintiff had looked to the north after reaching the center of Burnet avenue, was his view of the approaching automobile driven by the defendant obstructed?"
The court's general charge was the usual charge delivered in negligent cases involving collisions. The law of Ohio as to the speed of motor vehicles was given, and the quoted ordinance of the city of Cincinnati, relating to right of way, was read verbatim. In connection with the latter the court charged:
"Right of way means the right of one on a crossing to proceed uninterruptedly in a lawful manner; but this does not excuse the one having such right of way to exercise ordinary care in walking across said crossing or going across said crossing."
"If you find that either of the parties violated either the law of the state or the ordinance of the city of Cincinnati, which law and which ordinance have been read to you, then that would be negligence as a matter of law."
It does not appear from the record that plaintiff registered an exception either to the submission of the interrogatories or to the general charge of the court.
Ten of the twelve jurors returned a general verdict in favor of the defendant, and the same ten jurors answered both of the special interrogatories in the negative. A new trial was denied and judgment entered on the verdict.
Error was prosecuted by the plaintiff to the Court of Appeals, which reversed the judgment of the lower court and remanded the case for a new trial, for the following reasons, as stated in the judgment entry of reversal:
"1. In submitting Interrogatories Nos. 1 and 2.
"2. In reading and submitting Special Instructions Nos. 1 and 2 to the jury [defendant's instructions].
"3. In charging upon the subject of contributory negligence in the court's general charge."
The action of the Court of Appeals was apparently predicated upon the theory that the right of way given plaintiff by the ordinance was an absolute right, and that consequently contributory negligence was excluded from the case.
Mr. Henry E. Beebe, for plaintiff in error.
Mr. Jacob S. Hermann and Mr. Harry H. Friedman, for defendant in error.
As we view it, the real question in this case is: Where a city ordinance gives a pedestrian the right of way at a street crossing, is he thereby absolved from the duty of exercising ordinary care for his own safety?
This court has never passed directly on the question, but courts of last resort in other jurisdictions have had the precise matter before them and have generally reached the conclusion that a pedestrian given the right of way by city ordinance or statute at a street crossing is not thereby relieved from the common law duty to exercise ordinary care for his own protection.
Thus, in Rolfs v. Mullins, 179 Iowa 1223, 1229, 162 N.W. 783, 785, the court says:
"Appellant appears to rely somewhat on a portion of Section 3 of a city ordinance, which reads: 'Pedestrians are hereby given the right of way over crossings at street intersections.'
"But this in no wise impairs the duty of pedestrians to exercise ordinary care to avoid collisions with vehicles. It means no more than 'that, when two or more persons moving in different directions approach a crossing at the same time, or in such manner that, if both or all continue their respective courses, there is danger of collision, then the one having the preference is entitled to the first use of such crossing, and it is the duty of others to give him reasonable opportunity to do so.' ( Switzer v. Baker, 178 Iowa 1063.)
"The instructions were in accord with what was said in that case, and, of course, inconsistent with the notion that one may cross the street oblivious of surroundings. Conditions were such that the jury might have found that, had the decedent looked to the west, she saw the approaching automobile, or that she did not look, and, in either event that she was at fault, — that is, such conclusion was open to the jury."
Again, in Bora v. Yellow Cab Co., 103 N.J. Law, 377, 380, 135 A. 889, 890, it is remarked.
"Of course, a pedestrian at a street crossing who happens to have, under the Traffic act in the circumstances, the right of way over an automobile approaching such crossing at the same time, is not relieved of the legal duty to use reasonable care to avoid colliding with such automobile should its driver disregard such right of way * * *."
And this case holds that whether such pedestrian exercised the reasonable care required of him is a question for the jury under the particular circumstances of the case.
See, also, 1 Berry on Automobiles (6 Ed.), 318, Section 357; 5-6, Huddy, Cyclopedia of Automobile Law (9 Ed.), 144, Section 83; Babbitt Motor Vehicle Law (4 Ed.), 1299, Section 1799; Olsen v. Peerless Laundry, 111 Wn. 660, 191 P. 756; McDonald v. Wickstrand, 206 Wis. 58, 238 N.W. 820; Lieberman v. McLaughlin, 233 Ky. 763, 26 S.W.2d 753; Sawyer v. Blankenship, 160 Va. 651, 169 S.E. 551; Brown v. Patterson, Admx., 141 Md. 293, 118 A. 653.
While under the city ordinance in question plaintiff undoubtedly had the preference at the crossing, his right was not absolute; and, giving such preference due consideration, the question of whether he was guilty of negligence directly contributing to the injuries received was a proper matter for the determination of the jury under the conflicting evidence in the case.
That the issue of contributory negligence was developed by the evidence was apparently conceded by plaintiff when he requested a special charge on that very subject, which was given.
Since contributory negligence became a factor in the case, the special interrogatories submitted were within the purview of Section 11420-17, General Code, the answers to them tending to establish an ultimate or determinative fact, and being consistent with the general verdict for defendant.
The decision in this case is not intended in any way to disturb our holding in Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, 89 A. L. R., 831. We think the cases are distinguishable. The decision in Morris v. Bloomgren was based wholly on the effect to be given Sections 6310-28 and 6310-28a, General Code, taken together, and it was there held, as stated in the first paragraph of the syllabus:
"Construed together these sections confer an absolute right of way upon the vehicle approaching from the right, qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner." Here we are dealing with an isolated city ordinance, which carries the implication of preferential but not of absolute right.
It is our opinion that the trial court properly submitted the questions of ordinary care and contributory negligence to the jury, which found against plaintiff on conflicting evidence.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS, BEVIS and WILKIN, JJ., concur.