Donald Eagan, B/N/F v. Harry J. Douglas

• Decision Date: 07 November 1934
• Citation: 175 A. 222,107 Vt. 10
• Parties: DONALD EAGAN, b/n/f v. HARRY J. DOUGLAS
• Court: Vermont Supreme Court

175 A. 222

107 Vt. 10

DONALD EAGAN, b/n/f v. HARRY J. DOUGLAS

Supreme Court of Vermont

November 7, 1934

October Term, 1934.

Automobiles---Presumption That Pedestrian Crossing Highway Saw What Was within Range of His Vision---Rights and Duties of Pedestrian and Motorist---Inapplicability of Look-and-Listen Rule and Constant Vigilance Rule to Pedestrians in Crossing Highways---Negligence---Circumstances and Dangers of Situation as for Consideration---Vigilance Required of Pedestrian Crossing Highway at Other than Regular Place of Crossing---Duty of Pedestrian as to Looking for Traffic before Crossing City or Village Street between Intersections---Right of Pedestrian as to Reliance on Observations Made by Him---Assumption That Motorist Will Comply with Law as Available to Pedestrian Only When Latter Is in Exercise of Due Care---Contributory Negligence.

1. Pedestrian in crossing highway is presumed to have seen what was within range of his vision if he had looked.

2. Pedestrian and automobile driver have equal and reciprocal rights in use of highway, and each is bound to exercise due care.

3. Look-and-listen rule applicable to one approaching railroad crossing does not apply to pedestrian about to cross street or highway, nor does constant vigilance rule apply to him while crossing, but he is simply required to exercise for his own safety measure of care that prudent man would exercise in same circumstances.

4. Circumstances and dangers are always to be taken into account in determining what is due care or evidence of it.

5. Pedestrian attempting to cross highway at point where there is no regular crossing is required to exercise greater vigilance than if it had been regular cross-walk.

6. In cities and villages, due care requires pedestrians in all cases to look for traffic before starting to cross main traveled street between intersections, or to look at such time and place as will reasonably be of some benefit in protecting him and giving him knowledge of conditions of traffic.

7. Pedestrian crossing highway may not rely upon observation made so long prior to entry of zone of danger as to be wholly ineffective, and especially when line of vision is met by an obstruction.

8. While pedestrian crossing highway has right to assume that motorist will not drive in negligent manner and will not exceed local speed limit, he may not for that reason omit any care that law demands of him, since rule applies only in favor of one whose own conduct measures up to standard of due care.

9. In

ACTION OF TORT for negligence. Plea, general denial. Trial by jury at the September Term, 1933, Rutland County, # 12 Bicknell J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Judgment reversed, and judgment for defendant.

Judgment reversed, and judgment for the defendant to recover his costs.

Fenton Wing & Morse for the defendant.

James P. Leamy and Christopher A. Webber for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SHERBURNE

This is an action to recover for injuries suffered by the plaintiff by reason of having been struck by the defendant's automobile, and comes here upon exceptions by the defendant. The only question necessary to consider is whether the evidence made a case for the jury on the issue of plaintiff's contributory negligence, which is raised by an exception to the denial of defendant's motion for a directed verdict.

The accident happened at about 9.30 in the forenoon of Sunday, January 10, 1933, upon the marble bridge in the village of Proctor. This bridge is one hundred and seventy-five feet long and is level and straight. The roadway over it runs east and west and has a tarvia surface about eighteen feet and three inches wide. On either side of this is a sidewalk about four feet wide and six to seven inches higher than the roadway. At the west end of the bridge the road crosses an overpass to the central part of the village. At the east end the road forks. One road leads to the left toward the hospital and a road to Pittsford. The other road is known as South Street and leads to the right southerly toward West Rutland.

Viewing the evidence in the light most favorable to the plaintiff, the following facts appeared: Just prior to the accident the plaintiff was returning from the Catholic Church, located upon South Street one-fourth of a mile away, and had entered upon the south walk of the bridge at its east end; and the defendant was driving his automobile over the bridge in the opposite direction after entering at the west end, and was proceeding at from twenty-five to thirty miles per hour on his right of the center of the roadway and hugging close to the curb with his right wheels about two feet from it. The south walk ahead and behind the plaintiff was crowded with people returning from church.

At his entrance upon the bridge the plaintiff attempted to cross to the walk on the north side. He looked to the west, the direction from which the defendant was coming, but saw no cars approaching. He looked to the east and saw two cars coming. He waited on the walk for these to pass. Then, according to his testimony, after looking again to the west and seeing no cars he started to cross, and looking to the east to see if any cars were coming from that direction, saw some coming far enough back so that he thought he had time to cross in front of them. He had taken two to three steps when he was hit by defendant's car at a point when he was from two to five feet from the curb. He did not see defendant's car and the only evidence as to what part of the front of it hit him came from defendant's witnesses. According to the defendant's testimony the plaintiff was hit by the bumper and "flopped" over onto the right fender. According to the witness McIntyre the car hit the plaintiff just inside of the fender and threw him upon the hood. The plaintiff was carried and thrown toward the east and south fifteen or twenty feet and fell beyond the end of the bridge, where the pavement widened out, a little to the right of the course the automobile was traveling, and the automobile swung to the left and went around him and stopped fifteen to twenty feet beyond him out of the way of traffic.

As to the time it took him to get to where he was struck, the plaintiff argues from the testimony of McIntyre that it might have been three seconds. This witness, upon cross-examination, by the plaintiff, testified that it might have been two or three seconds, but upon re-examination testified that he guessed he made it a little high, and upon being asked: "It might have been a matter of a second to take whatever it was, to take two steps or three steps, and so you want to correct your two or three seconds to make it a second even, is that right? Replied: "Might be right, yes." This same witness in direct examination testified that in comparison with an average man walking the plaintiff "started very slow " as he walked out into the road-way, but he immediately qualified this as appears from the following questions and answers. "Q. Well could you tell us about how it would compare with the average man as he walks along the street? A. Why possible some fellows that wasn't too fast, wasn't going to start on a run. Q. That is, the boy wasn't running when he went out? A. No. Q. I suppose you seen boys doing a hop, skip and jump, haven't you? A. Well when he started there really looked just as though he gave one skip and that step and then I should say another step out, as I would think, would be in the neighborhood of three feet or three and a half feet." The only other witness who attempted to state the time plaintiff took to get to where he was struck was the defendant. When asked how much time he had to see the plaintiff he testified: "I had maybe a couple of seconds and I don't know as I had that much." He testified further that the plaintiff stepped off the walk when the distance between the front of the car and the plaintiff was about four to five feet, and that the time he had to see him was limited to the time the car went four or five feet, whether a second or a minute.

Defendant produced the only witnesses who actually saw both the plaintiff and the car before the collision. The farthest away that any of these placed the car when plaintiff stepped out was that it was the...