Thomas v. Stevenson

Hallam, J. Jalmar Thomas, a boy eight years old, while coasting after dark, from a lot into a street, was injured by coming into contact with an automobile, belonging to defendant Stevenson, and driven by his chauffeur, defendant Mastrian. Two actions were commenced, one by Jalmar’s father on his own behalf and one on behalf of Jalmar. In both, the negligence charged was that defendant failed to maintain sufficient lights on the automobile. The automobile was equipped with the ordinary old-style gas headlights and also two small electric dashliglits. The headlights were not lighted. The dashlights were. The case was submitted to a jury and a verdict was returned for the defendants. 1. The difficult question in the ease arises out of the proper construction of section 2632, G. S. 1913. This section reads as follows: “Every motor vehicle operated upon the public highway of this state shall * * * during the period from one hour after sunset to one hour before sunrise, display at least two lighted lamps, visible from the front, and one on the rear of such vehicle, which shall also display a red light, visible from the rear. The white rays of such rear lamp shall [274] shine upon the number plate carried on the rear of such vehicle. The light of the front lamp shall be visible at least two hundred feet in the direction in which the motor is proceeding.” Defendant contends that this means that the front lights shall be visible to a person looking towards them and stationed 200 feet ahead of the car. If this construction is correct, the lights complied with the statute. Plaintiff contends, in effect, that the light of the lamps, that is, the rays of light which the lamps shed, shall be visible for a distance of “two hundred feet in the direction in which the motor is proceeding.” If this construction is correct, the lights did not comply with the statute. The language is not clear, but we think plaintiff’s construction is the correct one. It seems to us equally consistent with the language used. If defendant’s construction is the correct one, then the provision is nugatory. Headlights would not be required at all. Any conceivable light, even a lighted match, could be seen at night 200 feet away. The trial judge evidently adopted defendant’s construction. He did not so instruct the jury in terms. He simply gave the jury the language of the statute. But he instructed them that it was defendant’s duty “also to see that such lights * * * should be of such a character as to illumine the way for a reasonable distance in advance of the automobile.” The jury could but understand that the requirement that the light should be visible for a distance of 200 feet had no reference to such illumination or light upon the way. In this we think the court was in error. The language of the charge would be a correct statement of the law as to lights, if the statute did not specify their character. One purpose of the lights is to enable the driver to avoid doing injury to one on the highway, and they must illuminate the way for a reasonable distance, though a statute does not say so. This was held in Curran v. Lorch, 247 Pa. St. 429, 93 Atl. 492. The same principle was applied in Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L.R.A.(N.S.) 40, 135 Am. St. 30, where the question arose upon'the contributory negligence of the plaintiff in not having sufficient lights. The rule is applicable to a street railway. Currie v. Consol. Ry. Co. 81 Conn. 383, [275] 71 Atl. 356. A statute requiring “lamps showing white lights, visible within a reasonable distance in the direction towards which the automobile is proceeding/’ was held in Giles v. Ternes, 93 Kan. 140, 143 Pac. 491, to require lights illuminating for a reasonable distance ahead “for the direction and guidance of those in charge of the automobile.” And see Sweet v. Salt Lake City, 43 Utah, 306, 134 Pac. 1167. The purpose of the provision of G. S. 1913, § 2632, that “the light of the front lamp shall be visible at least two hundred feet in the direction in which the motor is proceeding,” was to fix by definite rule the distance which must be lighted and thus to remove from the province of the jury the duty of determining in particular cases what is a “reasonable distance.” The absence of a statutory light was negligence per se, Schaar v. Conforth, 128 Minn. 460, 151 N. W. 275; Hillstrom v. Mannheimer Bros. supra, page 202, 178 N. W. 881; Unmacht v. Whitney, infra, page 327. 2. We -think there was evidence proper to submit to the jury as to whether the absence of such a light was the proximate cause of the injury. While, as above stated., one purpose and use of the front light is to illumine the way for the driver of the- automobile, this is not the only purpose or use. It was. also designed to serve as a warning to others of the presence and approach of the automobile. In this case the evidence is that Jalmar and a boy companion, who was with him,-approached the street traffic .from the side and eared for their safety by looking for the rays of light that automobile headlights were expected to throw. The dashlight on defendant’s car did not warn them. A real headlight might have done so. Order reversed and a new trial granted.