90 Vt. 196 | Vt. | 1916
The plaintiff was run down by the defendant’s automobile and suffered injuries on account of which he seeks damages in this action.
At the time of the accident, he was crossing a street in the village of Irasburg, and was passing northwesterly on a crosswalk. This street was on the easterly side of the common, — an open park of two or three acres. To the south of the cross-walk, and a few rods away, the road forked, one branch turning sharply to the west and running along the south side of the common, and the other branch bearing to the east and running down a slope toward Glover. On the east side of the street, nearly opposite the point of the accident, were the town hall and about forty-five feet south thereof a building containing two stores. The cross-walk extended from a point near the north-east comer of the store-building diagonally across the street, bearing to the north, to a walk that extended across the common to its northwest corner. It was broad daylight, and no. other person, vehicle or object was in any part of the roads or streets named, except the witness Semino, who was following the plaintiff across the street and was some ten feet behind him. The automobile came from the south; but whether it came along the south side of the common or up from the Glover road is not shown by the record. There were photographs in the ease which, at the defendant’s request, were marked by witnesses so as to show the point in the road where the plaintiff was hit and the point where the automobile stopped after the accident.
A verdict was ordered in the court below for the defendant on the ground of contributory negligence. It is here argued that the record shows no evidence tending to show negligence on the part of the defendant. But we cannot indorse this claim, and only take the time to say that the evidence tended to show that the defendant was negligent if not reckless, and that the accident would not have happened if he had exercised any care whatever to have prevented it.
The question of contributory negligence is much more difficult. On this branch of the ease, as all admit, the burden was on the plaintiff to produce evidence, direct or circumstantial, from which the jury could reasonably infer that he was in the exercise of due care. At first glance, it must be admitted, it is difficult to say that he has met the requirements of this rule, for he could have avoided the accident easily enough if he had looked toward the south while he was crossing the street. But in considering whether he was in the exercise of due care, sevéral legal rules must be kept in mind. The plaintiff and defendant had equal and reciprocal rights in the use of the highway, and each was bound to so make use of his own right as not to interfere with that of the other. Each was bound to exercise due care; but the degree of watchfulness which this rule imposed upon them was not the same. The defendant was driving a machine, which on account .of its speed, weight and quietness was capable of doing great damage, and the law puts upon one so situated a greater and more constant caution. He was bound to exercise care commensurate with the dangers arising from a lack of it. Deputy v. Kimmell, 51 L. R. A. (N. S.) 989, 80 S. E. 919; O’Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36; Brown v. Thayer, 212 Mass. 392, 99 N. E. 237. While the rule which applies to the plaintiff is the same in terms, it is not the same in its practical application. Nor did the rule applicable to one approaching a railroad crossing apply to this plaintiff. The look-and-listen rule, Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. (N. S.) 487, and the constant vigilance rule, Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W. 904, 20 L. R. A. (N. S.) 232; Hennessey v. Taylor, 189 Mass. 583, 76 N. E.
When a pedestrian is about to cross a street he must use the care of a prudent man, but the law does not undertake to further define this standard. The law does not say how often he must look, or precisely how far, or when or from where. Knapp v. Barrett (N. Y.) 110 N. E. 428. “It cannot be laid down as a rule,” says the court in Undhejem v. Hasting, 38 Minn. 485, 38 N. W. 488, “that in all cases, without regard to the extent to which the street is usually traveled, it is negligence for one on foot to cross it, or walk in it, without looking in each direction to see if a vehicle may be approaching. To do so upon a crowded city street, where vehicles driven rapidly, pass each way every instant, and where the crowd of vehicles prevents the drivers seeing readily a person on foot in a part of the street other than the crossings, and where, consequently, danger is nearly always present, might be so patently negligent that. a reasonable mind could come to but one conclusion; while it would be otherwise if the street were but little frequented. In the latter case it might or might not be negligent, depending on other circumstances; such, for instance, as the length of time spent in the street without looking around. ” And this expresses
What we have said is not to be taken as implying that the evidence in such a ease might not be so decisive in character as to justify an ordered verdict for the defendant; or that a pedestrian is to be excused from all diligence. On the contrary, these rules are admitted. We only hold that in the circumstances here shown, the plaintiff’s conduct was not negligence per se, but some evidence of due care; and that the question whether it was cautious enough to satisfy the law was for the jury.
Reversed and remanded.