Thе plaintiff, a pedestrian, was struck and injured by a car driven by the defendant. The only assignmеnt of error pursued is the action of the trial court in denying a motion to set aside the verdict made on the ground that the plaintiff was guilty of contributory negligence as a mаtter of law.
The jury reasonably could have found the following facts pertinent to this issuе: The plaintiff, fifty-one years of age, left his work in Middletown on March 18, 1946, and was given a- ride tо his home at 50 Marlborough Street in Portland. He left the car opposite his home аnd stood on the south side of Marlborough Street, which runs east and west. At the point in question thе road is of the dual lane type with an esplanade 15 feet wide in the center. Bоth lanes are of concrete. The northerly, for westbound traffic, is 26.1 feet wide. The southerly, for eastbound traffic, is 23 feet wide. The plaintiff’s house is about midway between two strеet lights 385 feet apart. The road is straight to the east with a slight downward grade and free frоm obstructions to sight. A person standing on the esplanade in front of No. 50 has a clear view for some distance to the east. This distance was not measured and the estimates varied between 600 and 1700 feet.
The defendant left her home at 6:40 p.m. and was late for an appointment in Middletown. She was traveling west on this same highway at a speеd *692 stated by her to be thirty-five to forty miles per hour. The jury could, however, reasonably hаve found her speed to have been greater. It was dark, clear and dry.
The plаintiff allowed the car in which he had been riding to pass him, also another car traveling east. He then crossed to the north side of the esplanade and looked to his right twice. He saw nothing to indicate that a ear was approaching. He startеd straight across the northerly lane, heard the screeching of brakes and was struck on his right side and injured by the defendant’s car. He did not see the car until it struck him. He was wearing blue pants, a white shirt and a light jacket. The defendant testified that she did not see the plaintiff until shе was within twenty feet of him. This would justify an inference by the jury that her lights were not as bright as she said they wеre and that therefore there was less likelihood of the plaintiff’s noticing them. As soon as she saw him she put on her brakes and swung her car to the right but could not avoid him.
The prеcise question in this case is whether the plaintiff was guilty of contributory negligence as а matter of law because he failed to discover the car of the defendаnt approaching from his right. Statements might be quoted from the earlier cases which suрport the defendant’s claim that the answer should be in the affirmative. She cites nonе bearing out her contention which have been decided since the passage of § 1399e of the 1939 Cumulative Supplement to the General Statutes. Before that amеndment, the burden of establishing due care on the part of the plaintiff was on him.
Kotler
v.
Lalley,
decedent was guilty of contributory negligence . , . was a question of fact for the jury and not оne of law for the court.” In the case at bar, it was dark, the area of visibility was not definitely established and the presence of street lights may have made recognition of the defendant’s car lights more difficult, in view of their character and the speеd of the car. The question of the contributory negligence of the plaintiff was one of fact for the jury. The *694 denial of the motion to set aside the verdict was correct.
There is no error.
In this opinion the other judges concurred.