409 S.W.2d 820 | Ky. Ct. App. | 1966
As she was walking across Hill Street in Louisville the appellant was struck and injured by an automobile operated by appellee Stiles. Appellant sued Mrs. Stiles for damages, and joined as a defendant the appel-lee Martin Transfer and Warehouse Company, Inc., (hereinafter Martin) asserting that one of Martin’s drivers negligently assured appellant that she could cross the street in safety. The trial court directed a verdict in favor of both defendants below at the conclusion of the plaintiff’s testimony. This appeal presents the question whether there was sufficient evidence to make a jury issue as to the liability of either or both of the defendants.
Although there are some discrepancies in the testimony presented for appellee, we must test the propriety of the directed verdict by indulging the inferences and constructions most favorable to the appellant fairly and reasonably ascribable to the evidence. Johnson v. Vaughn, Ky., 370 S.W.2d 591, 597. By that approach, the appellant’s evidence warrants the following statement of facts.
The accident occurred on a clear, dry afternoon in April. Appellant was attempting to walk from the south side to the north side of Hill Street when she was struck by the car. Hill Street is a two-way, four-lane thoroughfare, running in an east-west direction. Admittedly, appellant was not in a crosswalk, but was walking across Hill Street at a point five or six car lengths east of the intersection of Hill and 12th Streets.
At the time appellant started across the street the automatic traffic signal at 12th and Hill was “stop” for traffic along Hill Street — thus, there was no eastbound traffic in the two southernmost lanes of Hill Street between the 12th Street intersection and the point where appellant started across the street. There were some cars in the southernmost or inside westbound traffic lane on Hill Street; these vehicles were
“Q77. Now, would you tell us whether or not you formed an opinion as to how fast that car was going when it came around there?
A. 40 to 45 miles an hour.
Q78. Do you feel sure in your mind that it was going that fast?
A. Yes.
Q79. How long did it take that car to get up on you?
A. One or two seconds.
Q80. Was it quickly?
A. Yes.
Q81. Did you have time to do anything after you saw that car start around?
A. No.”
A witness testified that there was a movement of traffic on Hill Street just prior to the accident — from which it may be inferred that the traffic signal at 12th Street had changed to “go” for Hill Street traffic. Appellant suggests that an inference could be made that Mrs. Stiles had observed the change of the traffic signal and swerved to the outside lane in order to “beat” the standing line of traffic. The record reflects that Mrs. Stiles had lost her son in a downtown store, had reported him lost, and was on her way to get her husband — presumably to assist in locating the child — at the time of the accident.
Appellant recognizes the statutory requirement that a pedestrian shall yield the right-of-way to automobiles when crossing a roadway at any point other than within a marked or unmarked crosswalk. KRS 189.570(4). Our decisions implementing the statutory proscription of “jaywalking” are discussed in appellant’s brief, and effort is made to distinguish them from the case at bar. Some of the decisions so discussed are: Music v. Waddle, Ky., 380 S.W.2d 203; Travis v. Embry, Ky., 257 S.W.2d 64; Turner v. Fields, Ky., 309 S.W.2d 752; McKinney v. Ballard, Ky., 352 S.W.2d 200; Clark v. Smitson, Ky., 346 S.W.2d 780 and Severance v. Sohan, Ky., 347 S.W.2d 498. The trial court held that appellant was guilty of contributory negligence as a matter of law in crossing Hill Street outside of any crosswalk; appellant insists that the “yield” requirement imposed upon a pedestrian by the statute — and upheld in the cited cases — must not be inflexible. Appellant contends that it could not be negligence for the pedestrian to cross a street, even outside a crosswalk, when there is no approaching vehicle discoverable by exercise of ordinary care. Thus, it is reasoned, since appellant could not see the Stiles car when she looked eastward down the northernmost lane on Hill Street, nor could she
Appellant would equate this case with one in which a pedestrian crosses between intersections when no vehicle is in sight, but the pedestrian is struck by a car suddenly pulling from the curb, or from a drive. It is reasoned that the “yield” duty imposed on the pedestrian must give way if it be shown that the pedestrian, through no negligence, had no reasonable opportunity to yield. Without elaboration upon that theory, we are of the view that the factual situation at bar would not bring the appellant within the ambit of the theory anyway. Appellant admittedly saw automobiles using one westbound traffic lane, and there simply is no way to rationalize away her negligence in placing herself into the perilous situation which resulted in her injuries. It is our view that the trial court correctly ruled that the appellant was guilty of contributory negligence as a matter of law.
Appellant urges that the doctrine of “last clear chance” is applicable here, and that at least the case should have been submitted to the jury upon that theory. Reliance is placed upon Chism v. Lampach, Ky., 352 S.W.2d 191, and Riley v. Hornbuckle, Ky., 366 S.W.2d 304.
In Chism, the pedestrian was not crossing the street, but was walking on the right-hand paved surface, in violation of KRS 189.570(6). The defendant-motorist admitted that he saw the pedestrian so walking when he was 150 to 200 feet from her, and he took no precautionary action to avoid striking her, except to sound a “beep” on his horn when he was about 50 feet from her. In that case we said the “last clear chance” doctrine entitled the pedestrian to go to the jury. (As noted in Barker v. Danville Const. Co., Ky., 389 S.W.2d 931, KRS 189.570(4) is not applicable to persons walking along the highway, as opposed to crossing the highway; in the latter situation KRS 189.570(6) is applicable). We think it is obvious that the Chism decision does not rule the present case.
As respects the decision ir. Riley v. Hornbuckle, Ky., 366 S.W.2d 304, it is plain that the facts of that case raised a justifiable inference that the helpless plight of the negligent pedestrian was discoverable by the motorist for a sufficient time and space to permit the motorist to avoid the accident. So long as the pedestrian and the motorist have equal opportunities to avoid the accident, neither may be said to have the “last” chance — they simply have concurrent chances. As noted in the Riley opinion “ * * * there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a ‘clear’ chance ought to be left to the jury.” Tested by that principle, there is no basis in the present record for submitting an issue as to whether the appellee Stiles had a “clear” chance to avoid striking appellant. If we should assume that appellee Stiles was negligent
As appellant suggests, if the car travelled at 45 mph, it would go about 66 feet per second. It must be recalled that appellant was not within the normal line of vision for appellee Stiles until appellant emerged from in front of the Martin truck; since the Stiles car had to come from behind the Martin truck (or the line of traffic in which the Martin truck was stopped) it necessarily travelled somewhat at an angle as it changed lanes. In such circumstances it may well be doubted that the driver’s vision would have included the position of appellant until the Stiles car had practically straightened itself into the curb-lane. In substance, appellant had positioned herself so that she could not see, nor could she be seen, until she “cleared” the Martin truck. Assuming a “reaction” time of tyiths second (as is suggested in the record) the Stiles car would have gone nearly 50 feet before any braking could take place. The skid marks indicated that the brakes were applied some 15 to 20 feet before the impact; this leaves unaccounted for the 40 to 45 feet in which the brakes could have been applied during the estimated 110 feet that appellee Stiles travelled in the curb-lane. It is apparent that those “unaccounted for” feet could have been consumed in the brief interval required to change the car from one lane to the other. In any event, there is no evidence that the Stiles car could have been brought to a stop within 110 feet, assuming an original speed of 45 mph. We think it becomes clear, from the “hindsight” splitting of seconds and estimating reaction times that the “chance” afforded appellee Stiles was not a “clear” one, if indeed it was any chance at all.
There was no basis for submission of the case to the jury as respects the liability of Martin. Without undertaking an exploration of the so-called “good Samaritan” principles, it is plain that appellant did not rely on the alleged assurances of the Martin driver for her entrance into the curb-lane. She testified that she assured herself that the curb-lane was safe, and she must have known that the Martin driver had no means of determining whether any traffic would turn into the curb-lane from the inner westbound lane. Assuming, without deciding, that appellant had a right to rely on the assurances of the Martin driver up to the point of her passing in front of the Martin truck, she clearly did not rely on any such assurance as she walked into the lane where she was struck. Thus there is no causal connection between her injuries and any activity of the Martin driver.
Appellant complains of certain adverse rulings incident to admissions and rejections of evidence. None of the matters complained of, even if all were decided favorably to appellant, would affect the basic questions of contributory negligence and last clear chance. In view of what we have said, the questions thus raised become immaterial and we shall not discuss them.
The judgment is affirmed.
. We are not holding or suggesting that Mrs. Stiles was guilty of negligence in this maneuver.