769 P.2d 53 | Nev. | 1989
By the Court,
The jury in this case gave judgment to the defendant, respondent Phillips. We reverse because it was error for the trial court to refuse to give appellant’s instructions on negligence per se. “A negligence per se instruction would have served to shift the burden of proof to respondents to show excuse or justification, thereby relieving appellant of the burden of establishing actual negligence. Barnes v. Delta Lines, Inc., 99 Nev. 688, 690-91, 669 P.2d 709, 711 (1983). As such, there is no question that the jury may have reached a different result if it had been properly instructed on the law of negligence per se.” 99 Nev. at 691, 669 P.2d at 711 (1983); see Meyer v. Swain, 104 Nev. 595, 763 P.2d 337 (1988). There is ample evidence which would have supported a jury finding that respondent Phillips was guilty of several violations of statutory rules of the road. The trial judge should, therefore, have given negligence per se instructions, and his refusal to give these instructions constitutes reversible error.
Appellant Del Piero was struck by a vehicle being driven by respondent Phillips as Del Piero was attempting to cross the right-turn lane which channels east-bound Mill Street traffic into Rock Boulevard. Prior to entering the unmarked crosswalk where Phillips ran into him, Del Piero had been riding his bicycle in a northerly direction on Rock Boulevard. When Del Piero approached the busy intersection of Rock Boulevard and Mill Street, he decided to proceed northerly across Mill Street as a pedestrian rather than as a bicyclist. To do this he crossed to the west side of Rock Boulevard, lifted his bicycle over the west curb of Rock Street and walked northward pushing his bicycle along an unpaved pedestrian walkway that runs alongside the curb line on the west side of Rock Boulevard. The walkway ends at the curb line of the “channelized right-turn lane,”
Del Piero was struck by Phillips’s car when Del Piero was about one third to one-half of the way across the right-turn lane. He was walking in a path which approximated the extension of the unpaved'walkway that he had been walking on before entering the paved right-turn lane.
Although it was contested at trial, Del Piero was at the time of the collision a pedestrian. The trial court held as a matter of law that Del Piero was a pedestrian, and we see no reason to disagree with this holding. “‘Pedestrian’ means any person afoot.” Reno Municipal Code (RMC) sec. 6.04.430; NRS 484.111. Bicyclist Del Piero elected to proceed as a pedestrian, following along pedestrian paths and following procedures designed to protect pedestrians. The fact that at the time of impact he was straddling the bicycle rather than pushing it at his side does not transform Del Piero from a pedestrian into a bicyclist. If Del Piero had been struck on the sidewalk while straddling a bicycle, no one could reasonably have claimed that he was a cyclist rather than a pedestrian. The same applies to this straddle-walk across the right-turn lane. We agree with the trial court that Del Piero was a pedestrian at the time he was struck. We now consider the case in this light and examine the right-of-way enjoyed by pedestrians and motorists involved in this kind of mishap.
At the time of impact Del Piero appears to have had the right-of-way for two reasons: first, because Del Piero was a pedestrian traveling within an unmarked crosswalk at the time he was struck
That Del Piero was walking in an unmarked crosswalk at the time he was struck is subject to considerable contention on this appeal. The applicable ordinance, RMC 6.04.140(1),
RMC 6.04.280(1)
Often the kind of crossing area occupied by Del Piero is “distinctly indicated for pedestrians crossing by lines or other marking on the surface.” RMC 6.04.140(2). However the crosswalk at Rock Boulevard and Mill Street has not as yet been so marked. Therefore, a person traversing that intersection to the pedestrian refuge island must do so at an unmarked crosswalk as defined in RMC 6.04.140(1).
It is obvious that the ordinance describing crosswalks was drafted with the square-shaped intersection defined in the first
Del Piero also had the right-of-way because there was a “yield” sign controlling Phillips’s entry into the intersection of the right-turn lane and Rock Boulevard. Phillips seems to argue that the yield control has no relation to pedestrian traffic. On the contrary, as cited by Phillips himself, the “YIELD [sic] sign assigns right-of-way to traffic on certain approaches to an intersection. Vehicles controlled by a YIELD sign need stop only when necessary to avoid interference with other traffic that is given the right-of-way.” Manual on Uniform Traffic Control Devices, sec. 2B-7. There is no reason to believe that the word “traffic” as used here should be restricted to mean only vehicular traffic. When vehicular traffic enters such an intersection the yield sign assigns right-of-way to pedestrian traffic as well as to vehicular traffic; accordingly, “[v]ehicles controlled by a yield sign” must stop when it is “necessary to avoid interference with [pedestrian] traffic that is given the right-of-way.” Del Piero had the right-of-way by virtue of the yield sign, and Phillips failed to yield to Del Piero this right-of-way.
It is hard to understand how a jury could have found under these circumstances that Phillips’s negligence was not greater than the negligence of Del Piero; still, we are reluctant to grant judgment notwithstanding the verdict as requested by Del Piero. Instead, we reverse the judgment on the ground discussed, error in denying the negligence per se instructions, and remand for new trial.
The term “channelized right-turn lane” is taken from the Manual on Uniform Traffic Control Devices, U.S. Department of Transportation, Federal Highway Admin. (1971), excerpts of which were provided in the Addendum to Respondent’s Answering Brief. The manual, approved for application in this state by NRS 487.781, provides useful nomenclature in describing the Rock-Mill intersection.
“The specific function of a refuge island is to provide a place of safety for pedestrians who cannot cross the entire roadway width at one time in safety because of changing traffic signals or on-coming traffic.” Manual on Uniform Traffic Control Devices, sec. 5A-4. The island in this case was provided with a push-button control that extended the time of green-light passage for pedestrians crossing the traffic light-controlled portion of the intersection.
Del Piero’s testimony has him walking along the extended west curb line of Rock; Phillips’s saw Del Piero as being a few feet to the east of the extended west curb line but still within the area of the turn lane that was an extension of the unpaved walkway.
RMC 6.04.140(1) provides:
“Crosswalk” means:
(1) Part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or, in the absence of curbs, from the edges of the traversable roadway.
RMC 6.04.280(1) provides:
“Intersection” means:
(1) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two (2) highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.