Gaskins v. . Kelly

Seawell, J.. In answer to the first issue the jury found that Mrs. Gaskins was killed by the negligence of the defendant as alleged in the *703 complaint. The exceptions brought forward challenge the adequacy and correctness of the instructions to the jury on the second issue, presenting the question of contributory negligence on the part of the intestate. We examine first plaintiff’s challenge to the following instruction to the jury on this issue: “It was the duty of Mrs. Gaskins, gentlemen, in crossing a highway at a point other than within a marked cross-walk, and according to the eviStence here there was no cross-mark there, or within an unmarked cross-walk at an intersection, to yield the right of way to defendant’s car approaching upon the roadway, and the defendant, in the absence of anything which gave or should have given notice to the contrary, was entitled to assume and to act upon the assumption that Mrs. Gaskins would, use reasonable care and caution commensurate with visible conditions and that she would observe and obey the rules of the road. Now, gentlemen, that is the law.” In this instruction the court undertook to apply G. S., 20-174, to the situation presented in the evidence. That section reads as follows: “(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” In support of this instruction the appellee cites Tysinger v. Dairy Products, 225 N. C., 717, 36 S. E. (2d), 46. The Tysinger case, however, did not deal with an intersection and is not in point. In the opinion of the Court, G. S., 20-174, is not applicable to the facts of this ease and its presentation to the jury with the instruction based upon it must be held for reversible error. It was calculated to leave the impression on the minds of the jury that the deceased was at the time in violation of the law, or of a rule of the highway which made it her positive duty to yield the right of way, and that she was contributorily negligent in not so doing. Of course, the intestate was required to use reasonable precautions, or due care, in attempting to cross the highway at the intersection; but the duty of yielding the right of way under the provisions of this statute could not under the circumstances be superadded so as to make her chargeable with contributory negligence or relieve the defendant from the duty of approaching in the manner required by the statute and observing due care to avoid injury to a pedestrian within the intersection. Ward v. Bowles, ante, 273. *704 Tbe following instruction has also been made tbe subject of exception : “If you find as a fact from tbe evidence and by its greater weight tbat as tbe defendant Dr. Kelly approached tbe scene of tbe accident tbe plaintiff’s intestate, Mrs. Gaskins, suddenly came from behind tbe bus into tbe path of defendant’s car and was struck, and that this action on tbe part of Mrs. Gaskins was one of tbe proximate causes of her injury and death, it would be your du,ty to answer the second issue YES.” w Plaintiff’s objection to this instruction is tbat it presents a special phase of tbe defendant’s evidence, while contrary inferences which might reasonably be drawn from tbe evidence taken in its most favorable light for tbe plaintiff are withdrawn from consideration by tbe jury, and not presented here or elsewhere. We must, in conformity with tbe custom of tbe Court, refrain as far as practicable from discussion of the evidence in sending this case back for retrial, but a direct challenge of this sort renders unavoidable some reference to tbe evidence appellant contends was ignored, and the inferences which be claims might be drawn from it. Tbe appellant points out tbat there is evidence tending to show tbat the bus was parked on tbe shoulder, entirely off the paved surface of the highway; that_the road was straight, level, and the view unobstructed for at least 200 yards back from that point in the direction from which defendant was approaching; that Mrs. Gaskins had already crossed more than half the highway when she was hit; that defendant admitted he was traveling 45-50 miles an hour in approaching and traversing the intersection and did not slacken his speed or “swerve” from his course until he hit deceased. The appellant contends that a reasonable inference may be drawn from this evidence that Mrs. Gaskins was lawfully within the intersection as defendant approached, and had the right to rely on his observance of the rules of the highway requiring him to slacken his speed in approaching the intersection, and observe due care in avoiding the injury. Huddy, Auto, 7th Ed., p. 557; Berry, Auto, 4th Ed., p. 378; Babbitt, Motor Vehicles, 3rd Ed., pp. 1330, 1682. “Failure to anticipate omission of such care does not render him negligent.” Deputy v. Kimmell, 73 W. Va., 595, 80 S. E., 919. It is pointed out also, that there is no evidence that Mrs. Gaskins failed to look or take other reasonable precaution upon entering the highway except that which might be inferred from the “suddenness” of her coming from behind the bus and into the pathway of the car; and since she had gone such a distance before she was hit, and in view of the speed of the approach, defendant’s evidence is inconclusive as to her failure to look at the approaching car; that the matter was a jury question upon the whole *705 evidence. 5 Am. Jur., 758, sec. 448; Ritter v. Hicks, 102 W. Va., 541, 135 S. E., 601, 50 A. L. R., 1505, 1509; Knapp v. Barrett (opinion by Justice Cardozo), 216 N. Y., 226, 110 N. E., 428; Thornton v. Cater, 94 N. J. L., 435, 111 A., 158. We think the exception is tenable on the face of the record and while the jury is privileged to draw such inference’s from the evidence as conscience and sound judgment may dictate, plaintiff was entitled to have this phase of the evidence presented to them for their consideration. For these reasons there must be a trial de novo. It is so ordered. New trial.