11 A.2d 566 | Pa. Super. Ct. | 1939
Argued November 20, 1939. The verdict for the plaintiff in this case was set aside by the court below and judgment was entered for the defendant n.o.v. on the ground that the plaintiff was chargeable with contributory negligence as a matter of law.
On the evening of August 24, 1937 plaintiff was walking westwardly along the north edge of the paved portion of the Lincoln Highway near Downingtown. It was raining and was dark and misty and the visibility was poor. While so walking on the pavement, plaintiff was struck by defendant's automobile which approached from his rear without warning. This point in the highway is in the open country and there were no sidewalks. The earth and cinder berm along the edge of the pavement, ordinarily was usable by pedestrians as a walk, but on that occasion, according to plaintiff's testimony, it was "more wet than the concrete." At this point the road is straight, and while walking along the highway plaintiff frequently looked to the rear but did not observe the defendant's car until just before *312 he was struck. The defendant was driving at the rate of 30 miles an hour and although his headlights were lighted, he did not see the plaintiff until he was about 22 feet from him. Defendant did not swerve from his course and he struck the plaintiff because he was unable to stop his automobile within that distance.
Defendant clearly was negligent. "It is the duty of a person operating a motor vehicle in the dark to have it under such control as to be able to stop or avoid any obstacle which may present itself within the range of his lights": Nalevanko v.Marie et al.,
It seems equally clear that the question of plaintiff's contributory negligence was for the jury: "In the absence of sidewalks the rights of pedestrians upon the highway are equal to those of motor vehicles; and a pedestrian walking along the right side of a paved roadway is not required to turn and look for approaching traffic: Petrie v. E.A. Myers Co.,
In entering judgment n.o.v., the court relied upon McNeal v.Hettich,
Reversed and judgment directed to be entered for the plaintiff on the verdict.