Henderson v. O'Leary

Doerfler, J. In defendant’s first assignment of error he contends that he was not guilty of any negligence, and in his second assignment of error it is contended that the plaintiff was guilty of contributory negligence which "was the proximate cause of her injury. We will consider these two assignments of error together. A public street intersection differs materially from a private crossing such as is involved in the instant case. In arriving at an intersection of two public highways, a foot passenger cannot blindly enter such intersection without using his senses of sight and hearing, in an effort to observe approaching vehicles, so as to avoid danger. The rules laid down by this court in such a situation are designed to promote the public safety and to preserve human life and limb and property. The cai'e required of a pedestrian while walking on a public sidewalk and in crossing a private crossing differs from that required in entering upon the intersection of two public highways, and in each case is commensurate with the respective danger involved in the two kinds of intersections. Courts take judicial notice that in traveling along the sidewalks of a street pedestrians are often [133] times engaged in thought involving business or domestic affairs, and numerous other considerations which are closely connected with the individual. The ownership of an automobile has become quite common, and with this ownership has come the possession of private garages and private crosswalks, and, in fact, so numerous have these private crossings become that there are few blocks in a city street which do not afford entrances into private property by means of such driveways. The operator of an automobile must realize that while his use of this instrumentality is sanctioned by the law, nevertheless,'owing to the great danger to life, limb, and property involved in such use, reasonable care in the operation thereof must be exercised, with the object in view of averting and avoiding injury to others. In order to protect human beings and property from this danger statutes have been enacted, and one of these provisions requires an operator of an áutomobile to have on his machine a horn or other device with which he can signal his approach so as to caution others thereof. It is admitted in this case that the defendant failed to sound his horn before attempting to enter upon his private crossing, but that immediately prior to the happening of the injury he uttered the exclamation “Whoa, woman!” Under the evidence as heretofore detailed, can it be said that a jury issue was presented as to defendant’s negligence? As the defendant approached this crossing the speed of his automobile was diminished to six or seven miles per hour, an unusually moderate and low speed for such an instrumentality at any time or on all occasions. Surely it cannot be said, nor is it claimed, that defendant was guilty of any negligence in this respect. He carefully made the turn from the highway’into the garage while operating his car at such low rate of speed. The glaring headlights on defendant’s car when defendant started to make the turn necessarily cast their glare across the sidewalk in front of the plaintiff at some considerable distance, and such reflec [134] tion from such headlights rapidly approached the plaintiff more closely as the turning process of the car reached its ultimate aim. True, the statutes required the car to be furnished with a proper horn, which horn is designed to give warning in case of danger. There is no law, either statutory or otherwise, which requires the sounding of a horn where another warning equally as effective is given. The object of all warnings is to apprise of danger and to avert danger. The light reflected from the headlights on defendant’s car, and which continued to approach the plaintiff, not only constituted an adequate warning of the approach of the machine, but can be said to have been gentle and effective in its nature, designed to avert a sudden surprise or shock, such as would have been produced by the abrupt sounding of a horn while the car was in close proximity to the plaintiff. Defendant had every reason to believe that the plaintiff would observe the approaching light coming from the headlights of his car, and it is nigh unexplainable why plaintiff did not malee such observation. In other words, in making this Crossing defendant, being under the obligation to give some warning, was in a position where he could resort to either of the two species of warning referred to. In the exercise of his reasonable judgment he deemed the warning given by means of the headlights adequate and sufficient, and we are of the opinion, and so hold, that defendant was justified in having so exercised his mental processes. During every moment of the time while defendant crossed the parkway, up to the time that he arrived at the edge of the sidewalk, he had his car under complete 'control, which was manifested by the admitted speed of the car, and by the fact that he stopped his car almost instantly when plaintiff appeared in view, and because under the admitted facts there was no impact. That the car was almost instantaneously stopped is not in dispute, and it is not at all impos [135] sible — on the contrary, it is highly probable — that the defendant did not see the plaintiff approaching before he arrived at the east edge of the sidewalk, because the view of plaintiff’s approach was obstructed by the elm tree referred to. To have avoided this injury, under the unfortunate circumstances shown in the evidence, would have required superhuman powers of intuition. The evidence therefore does not, in our opinion, present an issue upon which reasonable minds may properly differ, and a verdict should therefore have been directed in defendant’s favor. In view of what has been heretofore held with respect to defendant’s negligence, it becomes unnecessary for us to pass upon plaintiff’s alleged contributory negligence. Suffice it to say, however, that we are of the opinion that -such issue constituted a proper jury question. The judgment of the circuit court must therefore be reversed, with directions to dismiss plaintiff’s complaint, with costs. By the Court. — It is so ordered.