White v. Edwards

Fellows, J. (after stating the facts) '. The conflicting testimony took the question of defendant’s negligence to the jury. We do not understand this to be controverted. Two important questions require consideration; they are: (1) Should the court have held as matter of law that plaintiff was guilty of contributory negligence? and (2) Did defendant owe plaintiff the statutory duty when approaching him in the highway required by section 4818, 1 Comp. Laws 1915? Numerous decisions of courts of last resort hold, and we think they should be followed, that one injured while momentarily standing in the highway and when not in motion is not per se guilty of contributory negligence, and that the offending party is not exonerated from all duty and from liability by the fact that he is not in motion. Among them see Dervin v. Frenier, 91 Vt. 398 (100 Atl. 760); Wells v. Shepard, 135 [324] Ark. 466 (205 S. W. 806); Kathmeyer v. Mehl (N. J.), 60 Atl. 40; Deitchler v. Ball, 99 Wash, 483 (170 Pac. 123); Bursaw v. Plenge, 144 Minn. 459 (175 N. W. 1004); Kaminski v. Fournier, 235 Mass, 51 (126 N. E. 279); Walden v. Stone (Mo. App.), 223 S. W. 136; Reisinger v. McConnell, 265 Pa. 565 (109 Atl. 280); Regan v. Cold Storage Co., 46 Cal. App. 513 (189 Pac. 474); Posener v. Long (Tex. Civ. App.), 156 S. W. 591; Humes v. Schaller, 39 R. I. 519 (99 Atl. 55, L. R. A. 1917B, 316). Nor do we think it can be said as matter of law that plaintiff under the facts of this case was guilty of contributory negligence. He testifies that before going out into the' street he looked both ways to ascertain if any vehicle was coming and that less than a- minute before he: was struck he looked both ways a second time. If ■defendant was driving as fast as some of the witnesses ^ay he was, he doubtless was out of plaintiff’s line ■H)f vision when he looked the second time. The trial judge did not err in declining to direct a verdict for the defendant on the ground of plaintiff’s contributory-negligence. Under the proofs that question was for the jury. Various acts of negligence were counted on in plaintiff’s declaration, including defendant’s claimed breach of duty to pedestrians under the statute above cited, and the ease was submitted to the jury upon the question, among others, of whether defendant had breached such statutory duty to pedestrians, and the jury were told that if they so found plaintiff could recover if they also found that he was free from contributory negligence. It is insisted on behalf of defendant that inasmuch as the statute uses the word “walking,” it should be limited in its application to persons in motion and that plaintiff, not having been in motion but standing still beside the truck when struck, is not within its protection. We think such [325] construction too narrow. It overlooks the rights of pedestrians in the highway and is subversive of the plain purpose of the legislature. In the case ' of Dervin v. Frenier, supra, the defendant had run over plaintiff, a boy 16 years of age, who was playing in the street, but who at the time of the accident was temporarily standing still. It was there said by the court: “True it is that streets and highways are not established for playgrounds, and such use of them is not to-be encouraged; but children always have and always will put them to that use to some extent, and they do not thereby become outlaws -or trespassers, or necessarily forfeit their rights therein as travelers.” In Smethurst v. Barton Square Church, 148 Mass. 261 (19 N. E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550), the following significant language was used: “In order to be a traveler, it is not necessary that one should be constantly moving, if he is a pedestrian, or that the vehicle he drives, or that in which he is conveying goods, if he is using one, shall be continuously in motion. It would certainly be impossible to use the highways conveniently for the ordinary purposes of business or social life with teams or lighter carriages, if occasional stops- were not permitted to enable those using them to load and unload teams, to receive and deliver goods, to enter shops and stores, and to make brief calls of business or even of a social character. During these stops, if reasonable in duration, one should not lose his rights as a traveler, and the protection thus afforded to his person or property.” In the recent case of Hanser v. Youngs, 212 Mich. 508, this court had before it the construction of another provision of the automobile law designed for the safety of the public. We there declined to give it a narrow, limited construction but held that it was to be liberally construed, and following the holdings of the supreme courts of Washington, Massachusetts, and Connecticut (Jaquith v. Worden, 73 Wash. 349 [326] [132 Pac. 33, 48 L. R. A. (N. S.) 827]; Commonwealth v. Henry, 229 Mass. 19 [118 N. E. 224, L. R. A. 1918B, 827]; Stroud v. Water Commissioners, 90 Conn. 412 [97 Atl. 336]), and declining to follow the supreme court of Iowa (City of Harlan v. Kraschel, 164 Iowa, 667 [146 N. W. 463]), we held, quoting from the syllabus: “1 Comp. Laws 1915, § 4812, requiring every motor vehicle operated and driven upon the public highways to display front and rear lights, construed, and held, to apply to a disabled truck temporarily standing in the traveled portion of the highway and not under motion.” The provisions of the automobile law regulating their use upon the highway are largely designed to protect life and limb and should not .receive too narrow a construction. Plaintiff “walked” upon the highway as he had a right to do, and momentarily stopped to negotiate a ride to Birmingham. We are not persuaded that by momentarily standing still he put himself without the protection of the statute. The instructions of the court on this branch of the case were not erroneous. The other assignments of error have been considered but need not be discussed. There is no reversible error on the record, and the judgment will be affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.