Apperson v. Lazro
| Decision Date | 29 April 1909 |
| Docket Number | No. 6,249.,6,249. |
| Parties | APPERSON et al. v. LAZRO. |
| Court | Indiana Appellate Court |
Petition for rehearing. Petition overruled.
For former opinion, see 87 N. E. 97.
Appellants, in their petition for a rehearing, insist that the court erred in sustaining the action of the court below in overruling appellants' separate demurrers to the first and third paragraphs of the complaint, and in holding that instructions Nos. 5 and 11 were harmless.
It is contended by appellants that this court erred in holding that it was the duty of appellants, as a matter of law, to leave the left side of the highway and turn to the right, to avoid a collision. Appellants seem to think that, because in this particular case they would have had to turn to the right in order to have avoided a collision, the law did not require them to turn at all, and that therefore they had a right to run straight ahead, regardless of the position of the pedestrian or the peril to which it might subject him. Were this the law, pedestrians would have no protection at all and would be wholly at the mercy of every traveler in a vehicle; but such is not the law. The rights of pedestrians and vehicles upon the highway are equal, and drivers are required to exercise such care and prudence as the circumstances demand-care in proportion to the danger or the risks in each case. Hannigan v. Wright, 5 Pennewill (Del.) 537, 63 Atl. 234. The fact, however, that the rights of pedestrians and vehicles are equal, and that appellants in this action may have had just as much right to travel upon the west side of the road as did appellee, cannot be argued against allegations in the complaint charging negligence and failure to use the care that the law requires in the exercise of that right, for although their rights were equal, and each was where he had a right to be, neither could so negligently exercise that right as to injure the other. Both paragraphs of the complaint aver that appellee was walking upon the western edge of the roadway, that appellants were traveling in the opposite direction, toward the plaintiff, upon this same side, so that there was but one way appellants could turn to avoid a collision, and that was toward their right. The third paragraph of the complaint charges that appellants carelessly and negligently failed and neglected to so turn, but ran straight ahead until said automobile struck said plaintiff, knocked him...
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