Opinion
Decided January 4, 1938.
The conduct of a pedestrian in crossing an intersection of streets while the traffic signals permit cars to turn the corner and cross her path on a cross-walk is not to be tested merely in the light of the pedestrian's observation before attempting to cross but rather in the light of what she ought reasonably to have seen. Hence in an action for negligently injuring a pedestrian by running upon her with an automobile in turning the corner of a street intersection, a request was properly refused to the effect that if the plaintiff before stepping into the street looked to her left for cars turning the corner and from her observation was justified in assuming that the defendant would not come upon the cross-walk then her inattention to traffic on her left while crossing the street was not negligence. On certain evidence of the activity of traffic at a street corner, of the lack of visibility due to weather conditions and the pedestrian's knowledge that the traffic signal permitted cars to turn the corner onto her path over a cross-walk, the pedestrian was not warranted in assuming that traffic would remain stationary for ten seconds while she walked a distance of about thirty-eight feet.
CASE, to recover for personal injuries sustained by the plaintiff, pedestrian, on Saturday evening, April 13, 1935, when she was struck by the defendant's automobile. Trial by jury and verdict for the defendant.
The accident occurred at the intersection of Main and Pleasant Streets in Concord. Main Street runs north and south and Pleasant Street east and west. Traffic lights were installed at the intersection, and Main Street traffic, with a green light ahead, could turn west into Pleasant Street. The defendant was driving north on Main Street. The light was red when he reached the intersection. When it changed to green he drove forward to the center of the intersection, brought his car to a complete stop, and waited for a car going south to pass. He then turned west to enter Pleasant Street and struck the plaintiff while she was attempting to cross that street.
Previous to the accident the plaintiff had been walking down the west side of Main Street. When she reached Pleasant Street she saw that the traffic light ahead was green. She looked to her left and saw no automobile turning west. She noticed traffic going north and also noticed several cars facing east on Pleasant Street where the light was red. After making these observations she started to cross the street. She kept her attention upon the traffic light ahead and upon the waiting cars on her right in order to see if she "would have time to get across before the light changed." She admitted on cross-examination that if at any point before she reached the middle of the street, where the accident occurred, she had looked to her left she "could have seen the lights of the car if one was turning west." The distance between the north and south curbs of Pleasant Street was about seventy-six feet. Further facts are stated in the opinion.
The plaintiff excepted to the refusal of the court to grant the following requests for instructions:
"If you find that the plaintiff looked to her left before stepping into the street, and if you further find that from her observation she was justified in assuming that the defendant would not come onto the cross-walk where she was, you must find that the plaintiff's inattention to the traffic on her left as she was proceeding to cross the street was not negligence.
"While the plaintiff was required to use due care in being on the watch, the same as the defendant was, their situations were entirely different, and each is to be judged accordingly. The defendant's duty to avoid pedestrians required him to use care in watching for their presence and to be ready to meet any careful conduct on their part that might be expected, while the plaintiff had no duty to be on the watch for cars whose approach or presence was not reasonably to be anticipated."
Transferred by Johnston, J.
Warren, Wilson, McLaughlin Wiggin (Mr. Wiggin orally), for the plaintiff.
Devine Tobin (Mr. Tobin orally), for the defendant.
The first request disregards the question of the adequacy of the plaintiff's observation and requires the jury to determine her conduct in relation to what she actually saw. It was evening and it was raining and she had her umbrella up. She testified that she did not see the defendant's car until it was practically upon her. The jury may well have believed that her glance to the left was inadequate and that if she had looked carefully she would have seen the defendant either approaching the cross-walk or waiting for the south-bound car to pass. Her conduct was not to be tested in the light of her observation but rather in the light of what she ought reasonably to have seen. Niemi v. Railroad, 87 N.H. 1, 3. Plaintiff's counsel evidently recognize the force of this distinction, for their argument is based on the assumption that the plaintiff first "exercised due care in determining that she could safely cross."
But whatever she may or may not have observed at the curb, she could not fairly assume that on a busy Saturday night, at an active street corner, in the business district of the city, traffic which had the right of way would remain stationary for ten seconds or more while she walked a distance of some thirty-eight feet. She saw cars going north and "saw one that was stopped coming toward the west," and she knew that while the traffic light showed green on Main Street, cars going either north or south were permitted to turn west. She must also have known that, in the rain, "conditions of visibility were such" that she might not readily be seen by one operating an automobile. Jackson v. Smart, ante, 174.
In the case of McCarthy v. Souther, 83 N.H. 29, from which the second request is taken, the decedent, having alighted from a friend's automobile, was crossing the street to enter his home. 390 Briefs Cases, 793. The highway was not heavily traveled, and there was no car in sight except the one which caused the accident. Obviously the facts which there called for emphasis on the respective duties of motorist and pedestrian are quite different from the facts here disclosed.
The court did not err in denying the requests.
Judgment on the verdict.
All concurred.