Hill v. Lappley

Ostrander, J. (after stating the facts). Usually a country highway is not, as a railroad crossing is, a [373] place of danger, to be approached and traversed only after looking and listening for coming vehicles. Usually, when persons having an equal right to use it come into collision' and one is injured and brings suit, the question of his due care and of the defendant’s failure to take due care are questions for a jury. The right of plaintiff to walk over, to cross the highway is clear, as is the right of defendant to drive his motorcar over it. Is it so clear that plaintiff failed to take due care for her own safety that in the problem presented defendant’s conduct is immaterial? I think it is clear, and that the ruling of the trial court was right. To the court the attorney for plaintiff said when the motion to direct a verdict was under consideration : “I do not claim she looked after she started to alight. I claim she looked when she got up, and couldn’t see anything in her path. Now, she was bothered and her attention was distracted by another thing, her bundles that she had to take care of. That was the business at hand, safely getting out of that car, picking up her skirts and her bundles with one hand, and feeling along the side of that car with the right hand to safely get her down, getting down backwards, occupying only, as one witness says, estimates, the time from half a minute to a minute.” It is obvious, I think, from all the testimony, that plaintiff most unfortunately stepped into the highway directly in front of the defendant’s car. The most ordinary care on her part should have prevented her from so doing. She cannot impose upon him consequences for which she was in part responsible. The judgment is affirmed, with costs to appellee. Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.