Pryor's Adm'r v. Otter

• Citation: 268 Ky. 602,105 S.W.2d 564
• Parties: PRYOR'S ADM'R v. OTTER.
• Decision Date: 04 May 1937
• Court: Court of Appeals of Kentucky

105 S.W.2d 564

268 Ky. 602

PRYOR'S ADM'R v. OTTER.

Court of Appeals of Kentucky

May 4, 1937

Rehearing Denied June 15, 1937.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Barbara Pryor's Administrator against John D. Otter. Judgment for defendant, and plaintiff appeals.

Reversed.

David R. Castleman and David R. Castleman, Jr., both of Louisville for appellant.

Huffaker Hogan & Berry, of Louisville, for appellee.

STANLEY Commissioner.

The appeal is from a judgment for the defendant, John D. Otter, in an action for damages for the death of Miss Barbara Pryor, caused by being struck by an automobile driven by him.

The accident occurred between 7 and 8 o'clock in the evening of December 11, 1935, at the intersection of Brook and Breckinridge streets in Louisville. The decedent was walking south on the east side of Brook street, and the defendant was driving east on the south side of Breckinridge. The weather was cold and Miss Pryor, dressed in dark clothing was holding her large coat collar turned up. A motorist traveling west slowed down for her to pass. Others in a car traveling north on Brook street, who had stopped for the boulevard traffic, observed her crossing the street. But the defendant testified he did not see her. There was a street light on the northwest corner and the lights of the automobile of the defendant and the car coming from the east were burning. The decedent had crossed well beyond the center of Breckinridge street when she was struck by the right fender of the defendant's automobile. He was traveling at 15 or 20 miles an hour and on the right side of the street, being 6 or 8 feet from the right-hand curb. The street is 36 feet wide. It was estimated that Miss Pryor was walking at a normal speed of three miles an hour and had gone 27 feet on the crossing when she was struck. So the motorist, at the lesser speed of 15 miles, had traveled at least 135 feet after the pedestrian had started to cross. There were two or three cars proceeding in front of him, the closest being about 25 feet ahead. The defendant testified that the first knowledge of Miss Pryor's presence was when he felt the impact. His car stopped within its length.

An ordinance had designated Breckinridge street as a boulevard. There seems to be three different classes of street crossings for pedestrians. One where traffic is controlled by automatic lights or police officers. Another where lines have been painted on the street paving to form a lane connecting or projecting the sidewalks on either side, designated as "cross-walks." Other crossings are without specific designation or control. The intersection where the accident occurred was of the second class where there were crosswalks. The decedent was proceeding in such a lane or passageway.

If there be no statute or ordinance changing the rule, pedestrians and automobile drivers have equal rights in the use of streets and highways. In exercising or claiming those respective rights there are reciprocal duties. Each party must recognize the rights of the other and exercise reasonable care to avoid injuring the other and of being injured himself. But owing to inequality of their situations and the disparity in their respective capacities to inflict injury, the requirements of ordinary care are different--the term being a relative one, dependent in its application upon the conditions and the degree of circumspection and action demanded by those circumstances. So the elements constituting ordinary care or reasonable precaution on the part of a motorist are materially different from those of the pedestrian. Berry on Automobiles, §§ 2.319, 3.139; Weidner v. Otter, 171 Ky. 167, 188 S.W. 335; Melville v. Rollwage, 171 Ky. 607, 188 S.W. 638, L.R.A.1917B, 133; Bruce's Adm'x v. Callahan, 185 Ky. 1, 213 S.W. 557; Trout's Adm'r v. Ohio Valley Electric Railway Company, 241 Ky. 144, 43 S.W.2d 507; Trainor's Adm'r v. Keller, 257 Ky. 840, 79 S.W.2d 232; Jackson's Adm'r v. Rose, 239 Ky. 754, 40 S.W.2d 343.

These general common-law duties require, upon the one hand, that a motorist exercise reasonable care in anticipating the presence of pedestrians at street crossings; that, specifically, he keep a lookout and give reasonable and timely warning of his approach by the usual and customary signals. And, as well, he must use the same care not to injure pedestrians if he is aware of their presence, although he may assume they will themselves act with reasonable prudence and not unexpectedly or suddenly place themselves in his path. On the other hand, the pedestrian must exercise ordinary care for his own safety, which unquestionably includes the duty to observe the traffic conditions and take proper precautions to avoid placing himself in such a position that a motorist who is himself exercising due care may be unable to avoid injuring him. What that degree of care requires that he should do before attempting to cross the street is a matter to be determined by the jury without being pointed out in the instructions. The pedestrian too has the right to proceed upon the assumption that a motorist will act with reasonable care in relation to his position. But, if he sees he is not doing so, the pedestrian cannot rest upon assumption and must take such reasonable measures as he can in the circumstances to prevent his own injury. Berry on Automobiles, §§ 2.319, 3.140; Weidner v. Otter, supra; Carr v. Warford, 198 Ky. 690, 249 S.W. 1024; American Dye Works v. Baker, 210 Ky. 508, 276 S.W. 133; Metts' Adm'r v. Louisville Gas & Oil Company, 222 Ky. 551, 1 S.W.2d 985; Wilder v. Cadle, 227 Ky. 486, 13 S.W.2d 497; Deshazer v. Cheatham, 233 Ky. 59, 24 S.W.2d 936; Jackson's Adm'r v. Rose, supra; Roederer's Adm'x v. Gray, 253 Ky. 669, 69 S.W.2d 998; Trainor's Adm'r v. Keller, supra.

Statutes and ordinances defining duties and regulating traffic are regarded as declaratory of the common law and supplementary thereto. Compliance with their terms does not absolve a motorist from a charge of negligence if he has failed to exercise ordinary care. Berry on Automobiles, § 2.316; Moore v. Hart, 171 Ky. 725, 188 S.W. 861; Jackson's Adm'r v. Rose, supra. A violation of the terms of a statute or ordinance is in this jurisdiction held to be negligence per se. But, of course, that negligence must have been the proximate cause of the injury in order to authorize recovery of compensation. National Casket Company v. Powar, 137 Ky. 156, 125 S.W. 279; Cumberland Tel. & Tel. Co. v. Yeiser, 141 Ky. 15, 131 S.W. 1049, 31 L.R.A. (N.S.) 1137; Collett's Guardian v. Standard Oil Company, 186 Ky. 142, 216 S.W. 356; Hart v. Roth, 186 Ky. 535, 217 S.W. 893; Hardware Mutual Casualty Company v. Union Transfer & Storage Company, 205 Ky. 651, 266 S.W.362.

In the case at bar the respective duties of the parties were established by the common law, by the statutes, and by an ordinance. Among the duties prescribed by the statute are that a driver shall operate his automobile in a careful manner, with due regard for the safety and convenience of pedestrians (section 2739g-35, Statutes), and shall sound a horn or other device whenever necessary as a warning of its approach to pedestrians. Section 2739g-28. Instructions only as to these two statutory duties were applicable to the facts of this case, for the evidence was undisputed that the defendant was driving at a reasonable rate of speed according to the statutes, and otherwise conforming with their terms. While the defendant testified he did not see Miss Pryor until he struck her, yet the circumstances were such that he could have done so. Whether he should have seen her in the exercise of ordinary care and have given a warning was for the jury. The duty of sounding a horn was not obviated by the fact he did not see her. Nunnelley's Adm'r v. Muth, 195 Ky. 352, 242 S.W. 622, 27 A.L.R. 910.

The traffic code of the city of Louisville, based on the Model Traffic Ordinance prepared by the National Conference on Street and Highway Safety deals comprehensively with the complex problem. Ordinance No. 94, Series of 1933. We shall confine our consideration to those portions of the ordinance which seem to have a particular application to the facts in hand.

Article IV pertains to "Pedestrians, Rights, and Duties." Section A provides that the director of works shall establish and maintain crosswalks (as we have described) in what is termed the Central Traffic District, and in addition may do so "where in his opinion there is particular danger to pedestrians crossing the roadway." Where so established, pedestrians shall use such crosswalks, but "when crossing at any place other than a cross-walk (they) shall yield the right-of-way to all vehicles upon the roadway." Section C is in part as follows:

"(Right-of-way of pedestrians at intersections). It shall be unlawful for the operator of any vehicle to drive into a cross-walk, whether marked or unmarked, while there is in such cross-walk in the path of such vehicle any pedestrian engaged in crossing the roadway, until such pedestrian shall have passed beyond the path of said vehicle."

Article V pertains to the "Operation of Vehicles." Section G of that article, deals with the matter of right-of-way vehicles. Its subsection 1 provides that authorized emergency vehicles and those carrying United States mail and funeral processions shall have the right of way on any street "over all other vehicles and pedestrians." Section G-3 provides that "Vehicles operated along a boulevard *** shall have the right-of-way at intersection of such boulevard *** excepting intersections where traffic is controlled by a police officer or a 'Stop' and 'Go' signal, or where the right-of-way or vehicles is otherwise regulated by...