Plante v. Pulaski ( 1932 )

LorinGj J.

(dissenting).

According to her own testimony the plaintiff, having as she claims looked both ways before leaving the north curb, did not look again to the right until she collided with defendant’s car. The arterial street she attempted to cross was the principal avenue of traffic from Duluth to its western suburbs and was the route of trunk highway Ho. 1. She attempted to cross it at 9:30 o’clock on a clear evening before a holiday. She says that when she looked to the right before leaving the curb she saw no car approaching from that direction. Either she did not look as she claims, or paid little heed to Avhat she saAV, or deliberately took a chance. Had she looked she must have seen defendant’s car, because at the highest rate of speed claimed by plaintiff’s witnesses it would not have been more than 450 feet aAvay. That its headlights Avere lighted is undisputed. According to her own evidence, there Avas nothing to obstruct her view. The street Avas dry. The weather was clear. A momentary glance to her right as she approached or passed the middle of the street would have disclosed the approach of the car and would have entirely avoided the deplorable accident. Instead of that she chose to ignore possible eastbound vehicles and to Avalk briskly on, heedless of approaching traffic, and did not stop until the moment of impact, when doubtless she involuntarily threw out her arm and it was caught in the door handle of his car as defendant swung it to the right in an attempt to avoid hitting her. True, he Avas negligent in speed and in failure to observe her sooner; but there is no evidence that his car sideswiped her or skidded sidevvays toAvard her. Her OAvn witnesses do not say so, and defendant’s testimony to the contrary is positive. His Avheels locked or dragged sufficiently to make the usual screeching sound. But the pavement Avas dry, and the evidence of both sides shows positively that he had turned to the right enough to avoid hitting her head-on and was still turning as they collided. That being the case, the rear of the vehicle in making the turn was farther to the south and farther from plaintiff, had she stood still, than the front end, which missed her. She must have been still going in order to collide witli the car. That physical fact demonstrates positively that she did not stop until the moment of impact. She says herself that she did not look to the right and was not aware of the car until the impact. If she ivas not aware of the car, of course she did not stop, because she was hurrying across; and, unless she heard the car or stopped to make an observation, she would not stop at all.

That she had the right of way at the cross-Avalk does not relieve her of the duty to exercise such care as ordinarily prudent persons exercise in like circumstances. Her duty to look in the direction from Avhich danger Avas to be anticipated Avas a continuing one in the sense that she must continue to exercise ordinary prudence. In my opinion, such prudence required her to look to the left as she crossed or was about to cross the zone Avhere the stream of traffic came from that direction, and again to the right Avhen she approached or entered the zone where the stream of traffic came from that side. Pedestrians of ordinary prudence do so and are expected to do so by all Avho use the street.

This Avas not a case where plaintiff saAV defendant’s car and underestimated its speed, or AAdiere she saw it and expected that defendant Avould yield the right of Avay. This woman heedlessly disregarded the approach of a vehicle which must have been in plain sight when she claims to have looked and heedlessly refrained from taking the most ordinary precaution on entering the eastbound zone.

The common Iuav rule of contributory negligence as a complete defense is a harsh doctrine and too often makes one negligent party bear the entire consequences of the negligence of both. Doubtless it should be modified by the legislative adoption of a rule more generous to injured plaintiffs; but, as long as it remains unmodified by the legislature, it is the duty of this court to give it effect.

The rule that a question of negligence becomes one of laAv for the court Avhen reasonable judicial minds would not differ as to the interpretation of conduct should be still in force in this state. It is fundamentally necessary to the administration of justice. NotAvithstanding Avliat may have been decided in other and dissimilar cases, I cannot see how reasonable minds could decline the conclusion that a pedestrian is negligent who heedlessly walks into the side of a, moving vehicle. If- pedestrians generally conducted themselves as did this plaintiff, the terrible toll of traffic accidents would be multiplied.