Menear v. Nutter

BISHOP, J.,

pro

tem.

Two related reasons are advanced by the defendant in support of his appeal from a judgment following a jury’s verdict: First, he urges that, as a matter of law, the plaintiff appears from the evidence to have been guilty of contributory negligence, and so not entitled to damages for the injuries, of which defendant’s negligence was, at least, one of the causes; secondly, he finds fault with an instruction given the jury, respecting the reliance which the plaintiff could place upon the presumption that the defendant would comply with the law. We are of the' opinion that the evidence does not lead to the conclusion that, as a matter of law, the plaintiff was guilty of contributory negli

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gence; nor do we conclude that the giving of the instruction requires a reversal of the judgment.

The plaintiff, a mail carrier, was injured while crossing a busy highway. As he approached the spot from which he stepped off the south curb into the street he noticed two ears approaching from the west at a distance of four or five hundred feet. One, the defendant’s then drew past the other (the other is identified in the record as the “larger” ear) and in doing so, drove over on and along the left, i. e., the north side, of the roadway. There was no traffic to prevent the defendant from returning to his own right side of the highway after he passed the larger car. During this passing, made at an increasingly high rate of speed, the plaintiff had progressed to a point beyond the center line of the highway, at which time the automobile of defendant was some one hundred and fifty feet away from him and just a little ahead of the larger car. From this moment on plaintiff turned his attention to a third automobile approaching from his right and in whose path he now found himself. Walking slowly, until he saw that the third car purposed to pass behind him, he then hurried forward, without again looking to his left, only to collide with the car of the defendant, which had not only continued on the left side of the highway, but at the last moment had been directed even more to the left as though to pass the third ear on the north side. This narrative, in spite of conflicting evidence, the jury could have accepted as containing the facts of the ease. The question whether or not plaintiff was negligent in the manner of his crossing was one for the jury, which it decided in his favor. The facts do not warrant us in declaring that as a matter of law plaintiff was guilty of contributory negligence.