Howley v. Kantor
| Decision Date | 04 January 1933 |
| Citation | 163 A. 628 |
| Court | Vermont Supreme Court |
| Parties | HOWLEY v. KANTOR. |
Exceptions from Rutland County Court; Deane C. Davis, Judge.
Action by Mabelle A. Howley against Max Kantor. Judgment for plaintiff, and defendant brings exceptions to the denial of his motion for a directed verdict.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Novak & Bloomer, of Rutland, for plaintiff.
Clayton H. Kinney, of Rutland, for defendant.
The plaintiff was struck by the defendant's automobile and injured while she was crossing Merchants row in the city of Rutland at about 9 o'clock in the evening of March 4, 1930. It is not questioned that the evidence reasonably justified a finding by the jury that negligence of the defendant proximately caused the accident, but the question of plaintiff's contributory negligence, as a matter of law, is raised by defendant's exception to the denial of his motion for a directed verdict.
Merchants row is a busy street in the heart of the business section. This street runs north and south, and it is 52 feet wide between curbs. The plaintiff started to cross from the westerly to the easterly curb "between crossings." About 170 feet northerly of this point, West street intersects this street, and a regular crossing is there provided for pedestrians. Traffic at the intersection is directed by "stop" and "go" signal lights.
The plaintiff looked in both directions before she left the westerly curb. There was no traffic from the south, and there was then no traffic moving between her and the intersection. She saw a bus facing east on West street. When she reached the center of the street, the bus was proceeding southerly on Merchants row, and was about 70 feet distant from her. The bus was 25 feet long and 8 feet wide, and, as it was proceeding, its east side was near the center line of the street. At the center of the street, and after the plaintiff had crossed the lane of travel occupied by the bus, she looked south, and saw that no traffic was approaching from that direction. She then directed her attention to the lights of the bus, and started to cross the easterly half of the street.
The defendant followed the bus a short distance south of the West street intersection, and then turned his car to the left from behind the bus, and was driving in the easterly lane of traffic, passing the bus, when he struck the plaintiff, who was 17 feet from the easterly curb.
The defendant does not argue that the plaintiff did not have the legal right to cross the street at a place other than a regular crossing, but he does contend that, when the plaintiff chose to cross at such a place, the prudent man rule required that she exercise a greater degree of vigilance for her own safety. When tested by this strict rule, we think the facts clearly made it a jury question whether the plaintiff's conduct met its requirements. It may be that, if the plaintiff had looked to the rear of the bus, and not at its lights, she might have seen the defendant's car. turn into her lane of travel in time to have avoided the accident, but even a person situated as the plaintiff was can hardly be expected to look in all directions at the same instant. After she had reached and passed the center of the street, her attention, naturally, would be chiefly directed to the south—the direction from which traffic would most likely be approaching her. Aiken V. Metcalf, 90 Vt. 190, 200, 97 A. 669; Parker, Adm'r, v. Smith, 100 Vt. 130, 134, 135 A. 495. It cannot be said, as a matter of law, that the plaintiff ought reasonably to have anticipated that the defendant would suddenly and without ample warning drive his car from behind the moving bus, into the easterly path of traffic, and run her down. The motion was properly denied.
The defendant requested the court to charge that "a person in attempting to cross a public street or highway at a point other than one provided for pedestrians is required to use greater care than when such person crosses at a point provided for pedestrians." The court did not comply with this request, but told the jury that it was for them to say whether a prudent person would in those circumstances exercise the same or a higher degree of care than when crossing at a regular place provided for foot traffic. In other words, the rule of conduct applicable to the plaintiff's situation was left to the jury to fix with only the prudent man doctrine to guide them. The question of the accuracy of these instructions is saved by appropriate exceptions.
The use of the term "greater degree of care," as applied to the plaintiff's situation, may be misleading, and technically inaccurate. There is but one standard of care to be applied to a person crossing at either place—the care and prudence of a prudent person under the circumstances. However, the practical application of the rule is quite different The precautions to be taken increase with the hazards. Aiken v. Metcalf, supra; see Shaw v. Moore (Vt.) 162 A. 373, 375. At regular crossings where pedestrians usually cross, the driver of a motor vehicle is required to be more vigilant in keeping a lookout for foot travelers than at points between crossings, and, at points where the vigilance of the driver is somewhat relaxed, the vigilance and watchfulness required of the foot traveler is correspondingly increased. This is due care under the circumstances. But it is not a question of fact to be left to the jury in each particular case; it is a rule of law, which has been drawn from the common experience of travelers in our public streets, and is recognized and applied by courts generally. Hizam v. Blackman, 103 Conn. 547, 131 A. 415; Rhoads v. Herbert, 298 Pa. 522, 148 A. 693; see decisions collected in 14 A. L. R. 1176, and 67 A. L. R. 313. See, also, Steele v. Fuller, 104 Vt.——, 158 A. 666. The charge of the court deprived the defendant of the benefit of the rule, and constitutes reversible error.
The defendant excepted to the charge that the statute (G. L. 4705, subd. 4) provides that a vehicle overtaking another vehicle going in the same direction shall pass to the left of the vehicle so overtaken, but in so doing shall exercise...
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