262 N.W. 152 | Minn. | 1935
Plaintiff was injured January 10, 1934, by an automobile driven by defendant Jacobson while in the employ of his codefendant, Northern Pacific Railway Company. For convenience, we shall discuss the case as though Jacobson were the only defendant, the railway company not being liable unless Jacobson is also.
Sixth street in Brainerd runs north and south. Willow street joins it from the east and ends there. The westerly curb of Sixth is continuous across the end of Willow. At about two o'clock p. m. plaintiff was riding on the right front seat of a sedan driven by his son Ralph. Their destination was in the neighborhood, but they were not quite sure how to reach it. Passing southward on Sixth at the end of Willow, they observed a Mr. Bailey on the east side of Sixth approaching Willow from the north. Plaintiff recognized him as an acquaintance. Desiring to get from him directions to aid in reaching his destination, plaintiff caused his son to stop the car, which had then crossed or nearly crossed Willow street, and to back it so that it would be opposite the northeast corner of Sixth and Willow, where Bailey was standing. That done, the car was parked close to the westerly curb of Sixth street just north of its intersection with the northerly line of Willow extended.
Plaintiff immediately alighted through the right-hand door of the sedan, walked around in front, stepped out into the street, and was run into by Jacobson's car coming from the north, which he did not see until the moment he was hit. He did not look to the north before stepping from in front of the car from which he had just *155 alighted. He testified that before leaving his seat he had looked through the rear window of the car, some 18 inches wide, and had seen nothing coming from the north. As he stepped from in front of his own car he was walking briskly. There was clear vision northward from where plaintiff was struck for at least two blocks. There was no other traffic and nothing to distract plaintiff's attention. He was struck either by the right end of the bumper, the right fender, or the right parking light on defendant's car. The parking light was on the cowl. Bailey, standing just across Sixth street at the time, saw all that occurred and is emphatic that it was the parking light which first hit plaintiff. But we assume that the evidence would have justified the jury in believing either that he was struck by the right end of the bumper or the right fender. Certain it is that he had not gotten in front of defendant's car, which traveled some 157 feet before it was stopped on the more or less icy pavement.
He was thrown, not forward or under the car, but laterally and to the right of it, and not very far. He was no more than seven feet from his own car when struck and was projected backward only far enough to leave him on the pavement to the left front thereof. Defendant's car, after coming to a stop, was immediately backed to where plaintiff lay on the pavement, getting there very speedily and taking him thence to a doctor's office.
Defendant's testimonial estimate of his speed was from 20 to 22 miles per hour. Plaintiff's son Ralph, upon more than usually scant opportunity for observation, puts it at 50 miles per hour. That estimate is out of line with all the other testimony and many physical facts not in dispute. But yet we do not fail to consider it in reaching our decision.
Assuming that, as far as the verdict rests upon a finding of negligence on the part of defendant, it is beyond successful attack, we must yet hold that contributory negligence appears as a matter of law. It is too plain for argument that if, just before stepping from in front of the parked sedan, plaintiff had looked to the north, he would have seen the approaching car driven by defendant. Hence the conclusion is compelled either that plaintiff did not look *156 when looking would have helped, or that if he did it was such an inattentive glance as not to have served any useful purpose.
It does not avoid that conclusion that both he and his son testified that before plaintiff got out of his car they both peered backward to see if anything was approaching from the north. That precaution, taken so long before plaintiff put himself in the position of danger, is not enough to meet the requirements of ordinary care. Even lawful speeds of automobiles are such that caution exercised so long before obviously dangerous factors combine in casualty is not enough. The time to look and make sure that the way is safe is just before the danger, if any, is to be encountered. Here plaintiff not only got out of his automobile after he looked, but also "stepped right out on" an accumulation of snow on the boulevard and covering the curb and walked around the west side of a lamppost near the sidewalk line before he turned back to attempt crossing in front of the car.
Plaintiff invokes 1 Mason Minn. St. 1927, § 2720-18(c), which provides:
"The driver of any vehicle upon a highway where the same passes through the closely built up portions or residence portions of any municipality shall yield the right of way to a pedestrian crossing such highway within any clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, * * *."
We assume that the jury was justified in deciding that defendant had violated this statute and was therefore negligent. Mechler v. McMahon,
The case is close, but that does not relieve us from the duty of disposing of it as matter of law if we are of the opinion, as we are, that it falls on that side of the line. Without attempting to review all the cases, we mention some that are relevant. Cheadle v. James,
Even if defendant had observed plaintiff alighting from his parked sedan, plaintiff's first movement over the curb away from it was no indication that he was about to turn back and attempt to cross to the other side of Sixth street in front of his own car. Were it otherwise, the right to assume exercise of due care by the other was as much that of defendant as it was of plaintiff. Defendant had the right to assume that no adult in the possession of his senses would step from in front of a parked car as did plaintiff without any precaution to avoid southbound traffic, which normally would pass close to the parked sedan.
In Saunders v. Yellow Cab Corp.
The argument for plaintiff fails because of its overstress on his statutory right of way. That right is not absolute and did not relieve him from the duty to exercise due care for his own safety. As matter of law, it appears from the record that he did not and that his failure to do so was a proximate and concurring cause of his injury.
The judgment is reversed.