Jackson v. Yellow Cab Company

Hammond, J., delivered the opinion of the Court. A pedestrian’s hand and wrist came in contact with the rear door of a taxi while she was standing on the concrete island in the middle of North Avenue, where she had taken refuge at the changing of the traffic light as she was crossing the street. The jury returned a verdict for the owner of the taxi (in a previous trial the jury could not agree) and, in her appeal, the pedestrian urges that the trial judge erred in not instructing the jury that since she had embarked on her journey in the crosswalk on a green light, her right of way continued until she had reached the far side of the street. There can be no doubt that the contention, as a proposition of law, is sound.

It is settled that a pedestrian starting across an intersection with a favorable signal has the right to complete the trip even though the light changes in the course of the passage. Packer v. Hampden Transfer & Storage Co., 206 Md. 407 ; Caryl v. Baltimore Transit Co., 190 Md. 162, 168 ; Heffner v. Admiral Taxi Service, 196 Md. 465, 472 . It is likewise true that if the pedestrian exercises or insists ³⁶⁹ upon his right of way he rarely is guilty of contributory negligence as a matter of law. In Brown v. Bendix Aviation Corp., 187 Md. 613, 619-620 , in which a passenger who had just alighted walked in front of a bus and was struck by a car passing the bus to the left in violation of statute, Judge Henderson for the Court said that there was evidence from which a jury might have found the plaintiff guilty of contributory negligence and “If there were no question of right-of-way involved, * * * she would have been barred by her action in leaving a place of safety. * * * Even before the recent amendment of the statute, this Court has held in a long line of cases that where the pedestrian has the right-of-way, contributory negligence is a matter for the jury to consider.” This is not to say that there cannot be instances where the minds of reasonable men would unite in finding the favored pedestrian to have abused his rights so grossly that he could not prevail.

The consideration given this very question in cases such as Sun Cab Co. v. Cialkowski, 217 Md. 253, 257 , makes this manifest. There it was said: “It may be agreed that a pedestrian at a crosswalk has some obligation to observe the rule of due care and caution to avoid injury. Chasanow v. Smouse, 168 Md. 629 , 178 A. 846 ; Sillik v. Hoeck, 168 Md. 639 , 178 A. 852 . On the basis of the evidence above summarized, we do not think that it can be said that it is established that the plaintiff did not use due care. * * * We think that on the evidence the jury could properly have found that the plaintiff had the right of way and that he was not bound to anticipate that the driver of the taxicab would not respect it.” The observation as to anticipation by the pedestrian is the key to the matter.

Generally a pedestrian, who would be guilty of contributory negligence if he were not favored as to right of way, may, if favored, have the jury pass on the question because he was not required to foresee that his rights would not be honored and could rely on respect for his rights by approaching motorists. In the case before us the pedestrian knowingly and voluntarily waived her right of way. She frankly and flatly says that as she was crossing on a green light from the northwest ³⁷⁰ corner of Druid Hill and North Avenues to the southwest corner in the pedestrian crosswalk, the light turned against her as she reached the concrete strip in the middle of North Avenue, and she stepped up onto the island, knowing she was safe there and intending to remain there until the light turned green for her again. Although it seems most unlikely that it did, the record leaves it uncertain whether the concrete island, three feet wide and ten inches high, extended into the pedestrian crosswalk.

It may well be that its easternmost end was the westernmost limit of that walk. If it is assumed that the pedestrian was still in the