Standard Oil Co. of Kentucky v. Noakes

• Decision Date: 27 June 1932
• Docket Number: No. 5986.,5986.
• Citation: 59 F.2d 897
• Parties: STANDARD OIL CO. OF KENTUCKY et al. v. NOAKES.
• Court: U.S. Court of Appeals — Sixth Circuit

59 F.2d 897 (1932)

STANDARD OIL CO. OF KENTUCKY et al. v. NOAKES.

No. 5986.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1932.

John E. Tarrant, of Louisville, Ky. (Wm. Marshall Bullitt and Bruce & Bullitt, all of Louisville, Ky., on the brief), for appellants.

Cleon K. Calvert, of Pineville, Ky. (J. G. Bruce, of Pineville, Ky., on the brief), for appellee.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

Appellants were the defendants below in a suit for personal injuries, and appeal from a judgment on a verdict for damages in favor of the appellee as plaintiff. Aside from a question as to relationship of master and servant between the driver of a motortruck and the defendant Standard Oil Company, which in view of our conclusions we need not decide, and a procedural question which will be hereafter discussed, the point involved in the appeal is whether plaintiff's contributory negligence required the direction of a verdict in defendants' favor.

There is not much dispute as to the facts, and we view them where there is controversy in the light most favorable to the plaintiff. About 1:30 in the afternoon of December 19, 1929, she parked her Plymouth sedan diagonally to the curb, and immediately south of another parked car on Main street in the business district of London, Ky. Main street runs north and south, and is part of U. S. Trunk Line 25, "The Dixie Highway." The car was parked on the west side of the street and well removed from any intersection. The street is forty-five feet wide, and the rear of the car extended approximately twelve feet into it. The plaintiff alighted from her car on the north side, walked to the curb, then around the front end of her car, then along its south side toward the east or opposite side of the street. The day was cold, the street covered with ice, and a keen wind blowing from the north. Plaintiff had her coat collar turned up and her head drawn down into it. There is some testimony that she looked to the south, in which direction her view was unobstructed; but the evidence is uncontradicted that she did not look to the north, the direction from which vehicles on her side of the street must come. She stepped out from behind her car immediately in front of a south-bound gasoline truck. The truck driver blew his horn and applied his brakes, the truck skidded, and the plaintiff was struck by its right side and injured. The truck was driven by a chauffeur employed by and subject to the orders of defendant McLemore. McLemore was engaged in the business of selling Standard Oil products on a commission, and owned the truck's chassis; the gas tank thereon belonging to the Standard Oil Company and being leased by it to McLemore.

At the close of the plaintiff's case, and again at the conclusion of all of the evidence, the defendants severally moved for a directed verdict, and upon denial of the motions, excepted. The court submitted to the jury the question of plaintiff's contributory negligence as an issue of fact, and a verdict in her favor against both defendants followed.

While the question of due care is very generally left to the jury, nevertheless when dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the courts. Baltimore & Ohio Railroad v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645; Cf. New York Telephone Company v. Beckers, 30 F. (2d) 578 (C. C. A. 2). We need not consider whether the standard of conduct applied to one approaching a railroad crossing is to be applied to one approaching an automobile highway, nor whether the standard applicable to the driver of an automobile is to be applied to a pedestrian. There can be no doubt that one who crosses a street between intersections and from behind a parked car, which not only obstructs his view but also the view of drivers of approaching cars, is under a duty to look in the direction from which danger may be expected, and the failure to do so is negligence which will defeat recovery if accident results. This must be so if reason and common sense are to be applied in measuring human conduct, and if experience and observation are of aid to judgment. "Walking from behind and going beyond a standing vehicle into the pathway open to traffic is a fruitful source of accident." Jones v. Florios, 248 Mich. 153, 226 N. W. 852, 853. "The time has come when ordinary care requires the pedestrian to look for approaching automobiles before he leaves the zone of safety." Mertens v. Lake Shore Yellow Cab & Transfer Co., 195 Wis. 646, 218 N. W. 85, 86. It seems wholly superfluous to multiply citations, though a large number of authorities directly in point are collected in a marginal note.¹ The undisputed evidence established the negligence of the plaintiff as a contributing if not the sole cause of the accident, and the defendants...