White v. McAllister

• Decision Date: 31 January 1969
• Citation: 443 S.W.2d 541
• Parties: Edythe M. WHITE, Appellant, v. Helen R. McALLISTER et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 541

443 S.W.2d 541

Edythe M. WHITE, Appellant, v. Helen R. McALLISTER et al., Appellees.

Court of Appeals of Kentucky.

Jan. 31, 1969.

As Modified on Denial of Rehearing June 27, 1969.

James T. Carey, Carey, O'Bryan, Duffy & McDonald, Louisville, for appellant.

Hogan, Taylor, Denzer & Bennett, John L. Bennett, Henry A. Triplett, Louisville, for appellees.

CLAY, Commissioner.

Appellant plaintiff, a pedestrain, was injured when struck on a street in St. Matthews by an automobile driven by appellee defendant June McAllister. The issue of liability hinged on whether plaintiff, when attempting to cross the street, was within a 'marked' crosswalk. At the conclusion of all the evidence the circuit court directed a verdict for the defendant on the ground that as a matter of law no marked cross-walk existed at the place of the accident.

Plaintiff was attempting to cross Frankfort Avenue, a heavily traveled thoroughfare in a business district, about midway between intersections. She was struck by defendant's automobile, moving west in the curb driving lane, when she had taken a very few steps from the curb. (The evidence indicates she could not have traveled more than three feet.) She had failed to observe the approaching vehicle.

Plaintiff's principal contention is that there was conflicting evidence on the issue of the existence of a marked crosswalk at the point she attempted to cross which raised an issue of fact the jury should determine. Plaintiff concedes she was contributorily negligent as a matter of law unless, at the time of the accident, she was in a 'marked' crosswalk.

This accident happened between intersections on a six-lane street in a metropolitan area where no traffic signals or signs identified a crosswalk. Under KRS 189.570(2), (4)(a), (c), a pedestrian has the right of way in crossing between intersections only if he is within a 'marked' crosswalk. The interpretation of this statute is, of course, a matter of law. 50 Am.Jur., Statutes, section 219 (page 198); Louisville and Nashville R. Co. v. Commonwealth, Ky., 314 S.W.2d 940.

The statute does not define a 'marked' crosswalk', and we find no Kentucky decisions construing this term. However, in the light of traffic conditions commonly known to prevail in metropolitan areas, and in the light of the traffic problems with which KRS 189.570 attempts to cope, it is evident that a 'marked' crosswalk must be one which is clearly identifiable. The pedestrian has a right to know if he can properly cross a street between intersections without violating KRS 189.570(4)(a), (c). By the same token, since the motorist is required to yield the right of way to a pedestrian using such a crosswalk, he is entitled to adequate notice of the existence of a street condition which imposes upon him this special duty. A 'marked' crosswalk normally would be one laid out on the street.

Under the laws of Washington, as quoted in Krogh v. Pemble, 50 Wash.2d 250, 310 P.2d 1069, a marked crosswalk is defined as one 'distinctly indicated', and the opinion refers to a crosswalk 'plainly' marked. There is testimony in the present case by an engineer that in establishing and maintaining a crosswalk it should be kept 'painted' and 'solid'. There is no magic here. The trial court recognized that a marked crosswalk should be 'well defined', 'well painted', 'definite', 'clearly marked' and 'distinctly marked'. In the light of commonly known traffic conditions and standards of conduct, and in the context of the statutory mandate, we can divine no other possible reasonable interpretation of the word 'marked'. In summary, a crosswalk of this character must be clearly identifiable on the street by distinct and adequate markings. This conclusion effectively undermises plaintiff's...