Gallagher v. Kahn

Opinion by Mr. Justice Potter, The question in this case, as stated by counsel for appellant, is, whether the circumstances under which a cab and a pedestrian came into collision at a street crossing, showed such.contributory negligence on the part of the pedestrian as to prevent his recovery, and required the court to say so, as matter of law. According to the testimony of the plaintiff he was, just previous to the accident, walking southwardly on the east side of Sixteenth street, and when about to cross Market street, he saw a car coming eastwardly on Market. He walked one-third^ of the way over Market street, stopped to let the car pass, then before starting looked and saw another car approaching, but at the time west of Sixteenth street, and seeing nothing else to hinder he continued on his way across Market street. When about halfway between the east-bound track and the south curb line, he was knocked down and run over by a cab coming from the west at a high rate of speed. There was ample evidence to show gross negligence upon the part of the cab driver. The plaintiff testified that he did not see the cab, until it was right upon him. Counsel for appellant contend that he must have been guilty of contributory negligence in not seeing, and avoiding it. That may possibly have been true as a matter of fact although the jury did not agree with the contention; but we do not see that the court would have been justified in so holding, as matter of law. In order to safeguard himself while crossing the street, the plaintiff was under the need of looking in more than one direction. Cars and vehicles of all kinds were liable to pass either way. He was bound to avoid collision with other pedestrians if any were there, and to keep a reasonable lookout for obstructions of any kind in the street. Nor was he bound to foresee that a cab would come down upon him at the regular street [543] crossing at an unusual rate of speed. It was only the ordinary conditions of the street traffic that he was bound to anticipate. Plaintiff said that he was looking straight ahead of him as he walked across the street, but that his line of vision took in as much as twenty feet on each side of him. It was for the jury to say whether if this statement of plaintiff was true, he was justified in proceeding to cross as he did. It may be that a pedestrian could ordinarily cross in safety the line of travel of a horse and cab, if it was not within twenty feet of him when he started to crossdhat line. At any rate it was not for the court to say that he was, under the circumstances, negligent in making the attempt. In süch cases as this, where the line.of separation between questions of law and questions of fact is very shadowy, and minds equally intelligent and impartial might draw different conclusions, the safer and wiser plan is to take the judgment of twelve impartial men of the average experience of the community. We are satisfied that the disputed questions of negligence and contributory negligence were very properly submitted to the determination of the jury, and.the judgment is affirmed.