Mears v. McElfish

Urner, J., delivered the opinion of the Court. While the plaintiff, a girl seventeen years of age, was walking on the Bedford Road near Cumberland, about half past eight o’clock on the evening of Tune 20, T920, she was struck and injured by an automobile passing from the rear. It was raining at the time, and the plaintiff and a woman who accompanied her were sheltered by an umbrella. When the accident happened, they were on the right-hand side of the: road as they proceeded towards the city.

A short time previously they had crossed from the left side of the road, because the path on which they had been walking there was muddy. The roadway is macadamized. The average width of the macadam is fifteen feet. On the north side of the road, where the plaintiff and her companion were walking at the time of the accident, there was an unpaved space between the macadam, and a ditch.

The two pedestrians were using’; that space, the plaintiff beingi next to, and just off, the macadam. After they had been walking on the north side of the road for a brief period, described in the testimony as being “more than a minute,” they saw an automobile coming from the city, and ⁸³ just before it reached them the plaintiff was struck by the defendant’s car, which had come from the other direction without any signal being given of its approach. The macadamized portion of the road was wide enough for the two automobiles to pass each other in safety, without using any part of the unpaved space on either side. The ease was taken from the jury at the close of the evidence for the plaintiff, which is, therefore, the only source of information afforded by the record as to the conditions under which the accident occurred.

A verdict was directed for the defendant, by two granted prayers which instructed the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and that the tmdisr putecL evidence proved the plaintiff to have been guilty of negligence which directly contributed to the accident. The only question to be decided is whether the case should have been thus withdrawn from the jury. In order to sustain the ruling below we should have to determine that the evidence does not admit of any inference of negligence in the operation of the defendant’s ear, or that it so conclusively shows the plaintiff to have been guilty of contributory negligence as to prevent any rational difference of opinion on the subject. It does not seem to us that the proof requires the adoption of either of those theories.

The defendant in his car and the plaintiff on foot were each entitled to the rise of the highway. They had reciprocal rights and duties as to its use. ETeither could be unmindful of the fact that the road was intended to be available for every legitimate purpose and method of public travel. The driver of the automobile was obliged to anticipate that pedestrians might be using the thoroughfare.

It was especially incumbent upon him to exercise reasonable care to avoid injury to travelers who, out of regard to their own safety, would naturally make