delivered the opinion of the court.
Thе plaintiff brought this action to recover for injuries alleged to have been inflicted upon her through being struck by an automobile driven by the appellant. The allegations of the complаint are substantially these: At 6:30 on the evening of May 20, 1922, the plaintiff was passing over the West Silver Street cross-walk from north to the south on the west side of Alabama Street in the city of Butte on the way to hеr home at 916 West Gold Street; that when she was near the curb on the south side of Silver Street she was struck by appellant’s automobile in the back, hips and abdomen, thrown upon the sidewalk and so bruised and injured as to cause traumatic neurasthenia; that the injuries were caused through the negligence of the appellant in failing to notice the plaintiff upon the crossing and in carеlessly driving the machine against her while passing over the crossing mentioned. The answer denies that the appealing
The only eye-witnesses to the accident were the plaintiff and defendant Mrs. Weinstein. At the northwest corner of the intersection of Alabama and West Silver Streets is a tract of ground known as the “playgrounds” or “cinders” extending one block eastward and a block and a half northward. There are no buildings in the vicinity other than the Warner Apartments, located one block east. On the west side of Alabama Street, extending northward, is a cement sidewalk about six feet wide. From the northeast corner of the street intersection there is a gully or gulch and a telephone pole at a point about six feet south and east оf the outer curb at the northwest comer, and surrounding this is rough ground. A crosswalk extends from the east side of Alabama Street along the north line of Silver Street. Another crossing is located upon the west side of Alabama Street crossing Silver Street from north to south. The accident occurred on the west crosswalk somewhere between the curb and the center of Silver Street, either thrеe feet from the south sidewalk, as the plaintiff testified, or at the crossing in the center of the street, according to defendant’s testimony. The plaintiff testified that she looked, but did not see an automobile approaching, and that she did not know from what direction the machine which struck her came, and that it threw her on the sidewalk on the south side of West Silver Street. The defendant testifiеd that she tooted her horn as she turned at the intersection of the two streets and was traveling westward so slowly that she billed her engine and stopped the car when she saw the plaintiff; that she
The defendant relies upon eleven specifications of еrror. She charges that the plaintiff was guilty of contributory negligence; that the court erred in denying her motion for a directed verdict, and in refusing to instruct the jury as requested by her; that erroneous instructions were given upon the law of the case; that plaintiff failed to establish negligence; and that the verdict is the product of passion and prejudice.
Upon the authority of subdivision 3 of section 1743 of the Revised Codes of 1921, this court announced the rule that a pedestrian and an automobile have equal rights in the use of a public highway and neither may with propriety infringe upon or disregard the rights of the other. (Green v. Bohm,
It is insisted that instructions 1, 3 and 4 were erroneous because the court did not submit the question of the plaintiff’s contributory negligence raised by the pleadings and evidence, regardless of thе 'blame, if any, placed or to be placed on the defendant. In other instructions, given over the plaintiff’s objection, the court correctly charged the jury on the question of contributоry negligence, and when those instructions are read in connection with those complained of, they will be found to be free from the objection made by counsel for the defendant.
Anothеr objection to instruction numbered 3 presents a more difficult question. The court charged the jury “That it is the law of the state of Montana that in cities, towns or villages vehicles turning corners to the right must kеep close to the right-hand curb, and a failure to do this constitutes negligence on the part of the person operating said vehicle and said vehicle and said person is liable in damages for any injury proximately resulting from his failure to keep close to said right-hand curb when turning said corner.”
Defendant’s objection was that the instruction given eliminated any reason that might have еxisted by reason of the physical characteristics of the highway, such as the post shown by uncontradieted evidence to have existed between the right-hand curb and the center of the highway.
The evidence was that there was a telephone pole standing out in the street from the curb something like six feet, and that it was physically impossible for the defendant to have
The provisions of the statute referred to are elastic and do not attempt to lay down definite and rigid rulеs without reference to changing conditions in the streets and highways, their freedom from other vehicles, moving or stationary, or fixed or permanent objects in the avenues of traffic, or the рosition a person operating a vehicle shall occupy to be free of negligence. (Domke v. Gunning,
A majority of the court áre of the opinion that the verdict is excessive. A reversal of the case being required upоn the grounds indicated, a consideration of that question is unnecessary. The judgment is reversed and the cause remanded, with directions to the district court to grant a new trial.
Reversed and remanded.