Armstrong v. McDonald , 72 N.D. 28 ( 1942 )

I dissent upon the ground that the record clearly establishes contributory negligence on the part of the plaintiff that bars his recovery as a matter of law. The plaintiff was injured while crossing Fourth Avenue in the city of Minot. He was walking in the regular pedestrian lane from south to north and was struck by an automobile driven by the defendant Gordon McDonald which approached the plaintiff from his right. The automobile had stopped on the east side of Main Street which is designated and marked as a Stop street. After stopping, the driver started up and proceeded across Main Street in a straight line to the point of impact which was in the pedestrian lane crossing Fourth Avenue along the west line of Main Street. It thus appears that the plaintiff was in the pedestrian lane where he had a right to be, and the automobile was moving in its lawful and proper lane of traffic. The paths of the pedestrian and the automobile met at right angles. Traffic was not congested. The plaintiff had a clear view of the approach of vehicles from all directions. His eyesight was good.

It is the duty of pedestrians, on public streets, to exercise reasonably the faculties provided by nature for their safety and self-protection. They may not heedlessly cross busy city streets without taking reasonable precautions to avoid injury. Brickell v. Trecker, 176 Wis. 557, 186 N.W. 593; Wiezorek v. Ferris, 176 Cal. 353, 167 P. 234; Jones v. Wiese, 88 Wn. 356, 153 P. 330; Moseley v. Mills, 145 Wn. 253, 259 P. 715.

The fact that the plaintiff was proceeding to cross the street in the regularly marked lane for pedestrians does not absolve him from the duty to observe due care to avoid injury. Chasanow v. Smouse, 168 Md. 629, 178 A. 846.

The plaintiff testified that he looked for moving cars before he started to cross the street and continued to look and saw no cars approaching him, yet he never saw what hit him. He did not know he had been struck by an automobile until he regained consciousness in a hospital. The undisputed testimony discloses that the accident occurred about four o'clock in the afternoon on a clear day. The automobile stopped at the intersection across the street to the east, started up and in crossing Main Street to the point of impact travelled about 76 feet. The driver says that he did not see the plaintiff because he was blinded by the sun.

The plaintiff's testimony that he looked and did not see the approaching car is legally incredible. Rattie v. Minneapolis, St. P. S. Ste. M.R. Co., 55 N.D. 686, 215 N.W. 158; Marshall v. Northern P.R. Co., 58 N.D. 626, 227 N.W. 55.

The two cases just cited are railroad crossing accident cases; however, the same rule applies to a pedestrian who walks into the path of an approaching automobile. In holding that a pedestrian who was struck at a street intersection by an automobile travelling 5 to 8 miles per hour was guilty of contributory negligence as a matter of law, the supreme court of Michigan said: "That she testified of looking and seeing nothing is of no avail when the physical facts demonstrate that, had she looked, using ordinary care, she could, and must, have seen defendants' approaching car, and, had she so looked, and so used ordinary care, she could have avoided injury." Molda v. Clark, 236 Mich. 277, 210 N.W. 203.

We find the same rule applied in the following cases involving injuries to pedestrians by automobiles. Mertens v. Lake Shore Yellow Cab Transfer Co. 195 Wis. 646, 218 N.W. 85; Robichaux v. Dorion, 17 La App 159, 134 So. 784; Stephen Putney Shoe Co. v. Ormsby, 129 Va. 297, 105 S.E. 563.

"If a pedestrian looks for approaching automobiles before attempting to cross a street or highway, he is presumed in law to have seen what he should have seen had his observance been careful and attentive. He cannot justify himself by saying that he looked and did not see the approaching car that injured him, when, if he had looked, he must have seen the car. Unless there is some circumstance or condition to excuse him, his failure to see the car constitutes negligence as a matter of law." Huddy, Automobile Law, 9th ed, Vol 5-6, p. 156.

The legal incredibility of the plaintiff's testimony is strengthened by the positive testimony of a disinterested witness who saw the accident while sitting in his car on the south side of Fourth Avenue. As the plaintiff stepped from the sidewalk into Fourth Avenue on the pedestrian lane, he passed in front of this witness's car. The witness also saw the car that was involved in the accident when it stopped on the east side of Main Street. As the plaintiff passed in the front of the witness's car "he was looking down on the sidewalk; at the time I was kind of wondering just what would happen."

The record discloses this further testimony by the same witness:

"Q. And this elderly gentleman, you say, walked in front of your car, and where was he looking, if you observed?

"A. He was looking down to the sidewalk.

"Q. And did that call your attention, possibly, to observe what happened? A. Yes, it did.

"Q. Why? A. Well, because I was kind of wondering how they were going to pass each other.

"Q. He was walking right along? A. Yes.

"Q. Did he stop in front of your car, or before the contact of himself and the Office Specialties car?

"A. No, he did not.

"Q. Did you observe what part of the Office Specialties car he walked into? A. I would say the front part of the fender.

"Q. The front part of the fender, and what happened then?

"A. He kind of went over on the car and then flopped back on the street.

"Q. He flopped back on the street? A. Yes.

"Q. And what happened with the Office Specialties Company car?

"A. It stopped practically immediately.

"Q. It stopped almost immediately — and about how far would you say it went before it stopped?

"A. I don't know; I suppose about three or four feet."

There is other testimony to the effect that the plaintiff was not struck by the fender but was struck on the right leg by the automobile bumper and thrown to the pavement. This, however, does not lessen the force of the testimony and circumstances that clearly indicate contributory negligence on the part of the plaintiff. He crossed the street wholly oblivious of danger from approaching automobiles. His negligence in this respect contributed proximately to his injury and should bar his recovery as a matter of law.

BURKE, J., I agree with the views expressed by Judge Morris.