Opinion
Decided November 3, 1930.
Assault and battery — Pedestrian unlawfully struck by automobile — Conviction sustained by evidence — Recklessly driving automobile in violation of ordinance — Pedestrian not required to run or dodge traffic — Driver's duty to avoid pedestrian at street crossing.
1. "Assault and battery" may be committed by striking another unlawfully with an automobile.
2. Evidence held sufficient to sustain conviction of assault and battery upon pedestrian committed by means of automobile.
3. Evidence held to sustain conviction of recklessly operating automobile in violation of ordinance.
4. Pedestrian entering street crossing, exercising ordinary care, has right to continue to cross, exercising such care, and is not obliged to run or dodge traffic.
5. It is as much duty of driver to keep out of pedestrian's way, especially at crossings, as for latter to escape being run over, giving due consideration to greater difficulty of guiding and arresting progress of automobile.
ERROR: Court of Appeals for Lucas county.
Messrs. Powell Starritt, for plaintiff in error.
Mr. Gerald P. Openlander and Mr. Donald DeMuth, for defendants in error.
Mrs. A.J. Keuhn was convicted in the municipal court on two charges; the state case charging that she unlawfully assaulted, beat, and struck Christine Eroh, and the city of Toledo case charging unlawfully and recklessly operating an automobile in violation of an ordinance. The two charges grew out of a collision which occurred at the intersection of Walnut and Ontario streets in the city of Toledo, during daylight, on September 16, 1929. The car operated by Mrs. Keuhn struck Mrs. Eroh, who was a pedestrian crossing the street, and carried her on the fender over the curbing and against a tree with such violence that it resulted in the loss of one of her legs.
In the state case the defendant was sentenced to 30 days in the Toledo House of Correction, and to pay the costs, and in the other she was sentenced to pay the costs of prosecution. The judgments in both cases were affirmed by the court of common pleas, and these proceedings in error are brought to secure a reversal of the judgments.
Mrs. Keuhn was driving westerly on Walnut street and Mrs. Eroh was walking north on the west side of Ontario street, and had started across Walnut street. When she had reached a point about 10 feet from the southerly curb of Walnut street, she was struck by the car being operated by Mrs. Keuhn. A car operated by Lawrence Spaeth was traveling south on Ontario street at the same time. The Spaeth car, when it reached Walnut street, turned sharply to the west, close to the curb, leaving ample room for Mrs. Keuhn to drive between Mrs. Eroh and the Spaeth car, if her own car had been under control. It is claimed by the state and by the city that Mrs. Keuhn did not make a safety stop as she reached Ontario street, although she was familiar with the streets in that portion of the city and was aware that such stop was required. While the evidence is in conflict as to whether she did make a safety stop, several disinterested witnesses testify that she did not make such stop, and a finding that she failed to make the stop is clearly sustained by sufficient evidence. The paving on Ontario street at that point is about 30 feet in width, and if Mrs. Keuhn had made the safety stop it is difficult to see how her car could have been going with sufficient speed to prevent her stopping before she struck Mrs. Eroh and crashed into the tree. The charge in one case is assault and battery, but that may be committed as well by striking another unlawfully with an automobile as with a club. A finding of guilty in each case is sustained by sufficient evidence.
Mrs. Eroh, as a pedestrian crossing a street, seems to have exercised the ordinary care of a person traveling on foot across a city street. Notwithstanding the speed at which traffic is accustomed to move on city streets, travelers on foot still have some rights. If a pedestrian enters a street crossing exercising ordinary care, he has the right to continue to cross, exercising such care, and is not obliged to run or jump or dodge, although with the instinct of self-preservation it is often done. The relative rights of a pedestrian and a vehicle at a street crossing are clearly set forth in Cincinnati Street Ry. Co. v. Snell, 54 Ohio St. 197, 205, 43 N.E. 207, 209, 32 L.R.A., 276, in which case the court uses the following language:
"Life and limb are of more consequence than quick transit. The vehicle man must not run down the pedestrian. The opposite doctrine appears to have found lodgment in many minds, and there seems a disposition to assume that a foot passenger has no right upon a public street as against a street car. Indeed, common observation seems to show that this belief controls the conduct of drivers of many conveyances, public and private. Too often there is a reckless disregard of human life and limb, and pedestrians are compelled, at their peril, to keep out of the way. As matter of law, it is as much the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle."
Although that was a case involving a street car, the principle would be just the same as to an automobile.
The case of State v. Schaeffer, 96 Ohio St. 215, 117 N.E. 220, L.R.A., 1918B, 945, Ann. Cas., 1918E, 1137, was a case in which the driver of an automobile was convicted of manslaughter for running over a child, and this conviction was sustained by the Supreme Court. In the course of the opinion, on page 233 of 96 Ohio St., 117 N.E. 220, 226, the court uses this language:
"The daily press is full of hairbreadth escapes and casualties, from slight injuries on the one hand to instant death on the other. It may well be said, `that the railroad locomotive has killed its hundreds, but the automobile is killing its thousands.'"
We are in full accord with what the court said at page 234 of the last case cited (117 N.E. 220, 226), in speaking of the statute:
"The careful, conservative driver need have no fear of it. The reckless, wanton speed-maniac needs to be kept in fear of it."
Finding no error, the judgments are affirmed.
Judgments affirmed.
WILLIAMS and LLOYD, JJ., concur.