Tatum v. Croswell

Stephens, J. 1. The operator of an automobile along a public road could be found negligent in failing to anticipate that a person seen by him, ahead of him, standing still in the road, oblivious, or apparently so, to the approach of the automobile, will move from his position; and where the operator of the automobile undertakes to pass the person standing in the road, without having the automobile under such control and without passing the person at such a distance as to avoid hitting him should he move his position, the operator may as to such person be guilty of negligence in so operating the automobile. See, in this connection, Daughraty v. Tebbets, 122 Me. 397 (120 Atl. 354, 34 A. L. R. 1507, and notes); Klink v. Bany, 207 Iowa, 1241 (224 N. W. 540, 65 A. L. R. 187, and notes) ; Webster v. Motor Parcel Delivery Co., 41 Cal. App. 657 (183 Pac. 220) ; Whitmore v. Smith, 75 Cal. App. 125 (241 Pac. 919); Smith v. Spirek, 196 Iowa, 1328 (195 N. W. 736); Sigrist v. Noon (N. J.), (147 Atl. 640). 2. Where the operator of an automobile along a public highway undertook to pass a person whom he saw ahead of him, standing by the left front-wheel of an automobile parked on the right side of the road, "right up against the curb,” and who, apparently oblivious to the approach of the oncoming automobile, had his back to the road and was giving attention to the parked automobile, and the operator of the oncoming automobile passed within '“about three feet” of the left front-wheel of tlie parked automobile and so close to the person standing there that when the latter, in order to avoid being scalded by an onrush of water from the radiator of the parked automobile, suddenly jumped or stepped back, and the automobile ran over his foot and thereby injured him, and where the traffic along the road at this point was not heavy, and the [854] vision along tlie roadway was clear and unobstructed for about three or four blocks in the direction of the oncoming automobile, and the ■roadway between the parked automobile and the middle line of the road was over twenty feet and the driver could have passed the parked automobile at a greater clearance than he did, it was a question of fact for a jury as to whether the operator of the automobile which caused the injury was guilty of negligence proximately causing the injury. Upon the trial of a suit brought by the person injured against the operator of the automobile, to recover damages for the injuries thus sustained, where the evidence was sufficient to authorize a finding that the plaintiff was in a position where he could be seen by the defendant, and where, under all the evidence, an inference was authorized that the defendant did see the plaintiff in the position indicated, a verdict for the plaintiff was authorized, and the court erred in directing a verdict for the defendant. Decided February 20, 1932. Rehearing denied March 5, 1932. Burress ■& Dillard, for, plaintiff. Spalding, MacDougald & Sibley, Ksles Doremus, S. M. Kelley, for defendant. Judgment reversed. Bell, J., concurs. Jenlcms, P. J., dissents.