Gernhardt v. Rancadore

CRAIG, J.

In an action for damages alleged to have been incurred through the negligent operation of an automobile, a trial before a jury resulted in favor of the plaintiff. The defendants appealed.

It is contended by the appellants that the record presents as a matter of law contributory negligence on the part of the respondent which would have constituted a bar to recovery, and requires a reversal of the judgment. The appellants premise their argument by conceding its limitation by the rule that “when the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury”, it ceases to be a question of fact for the determination of the jury. Upon the trial the plaintiff was shown to have alighted from a public vehicle on an easterly and westerly street, which thereafter proceeded in a westerly direction. He thereupon started across said thoroughfare toward the south, and had arrived at or below the center line of the street when he was thrown by the left rear door of the defendants’ car, and was injured. It was dark, the street lights were burning, and the plaintiff had seen a number of automobiles approaching from the westerly direction as he attempted to cross. He raised his left arm, signaling with an umbrella, that he intended to cross. There were no street signals, nor were there lines on the pavement to mark a

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pedestrian zone. Witnesses differed as to the distance within " which the defendants stopped after the impact being eight or ten feet or more than forty feet, and the speed of their car was estimated at eighteen miles per hour, and at twenty-five miles, and again as “very fast”. It was testified that respondent stopped when he arrived at the center of the street, and that he was frightened, as he had previously seen the ears about three blocks distant and believed he had ample time to reach the south side of the street. He swore: “I didn’t know whether to stop or go forward or backward; I was just stunned.” “I held it up, the umbrella, to beg him to get him to stop the car, and of course that is all I know; just then I was hit.” There was other evidence that the plaintiff was standing still, to await the passing of the cars. A passenger of the defendants testified: “I only saw this man standing there and he had some luggage in his hands and all of a sudden there was a crash and he came in through the window.” The defendant Rancadore conceded that “he was standing still”. It would seem that the respondent can be said to have done no less than was necessary to bring the case within the rule announced in a somewhat recent case wherein it was observed that the injured perso