Klokow v. Harbaugh

WiNsnow, C. J. Tbe appellant concedes that there was sufficient evidence to justify tbe finding that be was negligent and tbe concession seems not improvidently made. In our- judgment bis conduct nearly approached recklessness. He makes, however, two contentions: (1) that tbe plaintiff was guilty of contributory negligence as a matter of law, and (2) that erroneous instructions were given to tbe jury. These will be briefly considered. 1. Tbe argument on tbe first contention is in substance this: Tbe headlight of tbe automobile was plainly visible; it was plaintiff’s duty to look for it; either be looked or be did not look; if be looked be must bave seen it, and was negligent in attempting to cross tbe street in front of tbe machine ; if be did not look that fact itself was negligence; in either case bis own negligence proximately contributed to bis injury. Tbe argument goes too far. It seeks to extend the “look and listen” doctrine, wbicb is applied to persons approaching a railway track, to persons who are using a city street on which ordinary street traffic only is going on. This would prevent a pedestrian from ever crossing a busy street. It [265] would compel bim to remain standing with reluctant feet where the sidewalk and the roadway meet as long as there might be a ‘vehicle in sight. As between pedestrians and the drivers of ordinary vehicles, as well as between the drivers of such vehicles themselves, the law simply requires the ■exercise of ordinary care, i. e. the care which most people of ordinary prudence usually exercise under similar circumstances, and this is generally, though not always, a question for the jury. Ehnert v. Mews, 151 Wis. 425, 138 N. W. 998. It is clear that the defendant’s automobile was approaching at high speed. The plaintiff testifies that he looked northward just as he was stepping off the sidewalk and saw nothing. This is not incredible. He was following a number of men crossing the street to board the same car. He walked nearly or quite twelve feet before he was struck. He was intent on reaching the car, and he doubtless did not expect that any automobile driver would run past a standing street car which was receiving passengers with such speed. It is well said by the supreme court of Massachusetts in a similar case, “the usual rule of ordinary care does not impose upon them” (travelers upon highways) “the burden of being ■constantly on the lookout to see if their path is free from dangerous defects or in a state of apprehension of personal injury from other travelers. The traveler not only has a right to presume that the way is reasonably fitted for his use, but also that those who may be lawfully using it with himself will exercise a proper degree of care.” Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224. See, also, Arseneau v. Sweet, 106 Minn. 257, 119 N. W. 46; Ouellette v. Superior M. & M. Works, 157 Wis. 531, 147 N. W. 1014. 2. The instructions claimed to have been erroneous are as follows: “You are further instructed that a' pedestrian, after making observation and ascertaining that there were no automo [266] biles or other vehicles in his vicinity or dangerously near, may proceed to cross a city thoroughfare.” “If at the time a pedestrian leaves the curb be observes the street is clear and that there are no vehicles on the street for a distance greater than that which would be covered by a vehicle operating at a lawful rate of speed in order to reach the pedestrian’s line of operation, he may proceed on the assumption that all vehicles not within such distance will be operated at a lawful rate of speed.” In view of the principles already laid down in this opinion it seems clear that these instructions were correct. Pedestrians act on these assumptions every day. It may well be that if a pedestrian actually sees that a vehicle is approaching at a rate of speed which would make his crossing dangerous he is not entitled to take the chances. But there was no evidence in the present case that the plaintiff actually did observe that the defendant’s car was approaching at a high rate of speed or that he could have observed it under the circumstances. We find no error in the instructions. By the Court. — Judgment affirmed.