Snyder Et Ux. v. Campbell , 145 Miss. 287 ( 1926 )

^* Corpus Juris-Cyc. References: Motor Vehicles, 28Cyc, p. 28, n. 33; p. 29, n. 39; p. 36, n. 15; p. 37, n. 22 New; p. 49, n. 46, 49; Negligence, 29Cyc, p. 561, n. 34; p. 657, n. 50; On reciprocal duty of pedestrian and driver of automobile to use care, see note in 51 L.R.A. (N.S.) 990; 2 R.C.L. 1186; 1 R.C.L. Supp. 723; 4 R.C.L. Supp. 146. On duty of operator of automobile to keep his car under control, see 2 R.C.L. 1184; 1 R.C.L. Supp. 722; 4 R.C.L. Supp. 146; 5 R.C.L. Supp. 133. The appellee, P.G. Campbell, brought this action in the circuit court of Jones county for damages for personal injuries alleged to have been sustained by reason of being struck by an automobile which was being negligently and carelessly driven by the appellant, Mrs. George Snyder, on the streets of the city of Laurel, Miss. There was a verdict and judgment against both Mr. and Mrs. George Snyder for the sum of one thousand dollars and from this judgment this appeal was prosecuted.

To the declaration the appellants pleaded the general issue, with notice thereunder that they would offer proof to show that the appellee, at the time of his injury, was endeavoring to cross Magnolia street between corners or street intersections, in violation of a city ordinance requiring all pedestrians to cross certain streets at the street intersections, or other designated points, which were plainly marked, and that, in attempting to cross Magnolia street in violation of said ordinance, and at a place other than one designated in said ordinance and marked off, the plaintiff emerged from behind a car parked on the curb without noticing the approaching cars or traffic, and was guilty of gross negligence, which contributed to his injury.

From the evidence it appears that Magnolia street in the city of Laurel runs north and south. Oak street crosses Magnolia street, and one block south of Oak street Central avenue crosses Magnolia street. In the block fronting on Magnolia street and between Oak street on the north and Central avenue on the south is located the store of the Frank Gardner Hardware Supply Company, while on the east side of Magnolia street, and a little further south, is located the store of the Chambliss Hardware Company. On the occasion that appellee was injured he was at the store of the Gardner Hardware Supply Company, and desired to cross the street to the store of the Chambliss Hardware Company. It was raining at the time, and the appellee started across the street, walking rapidly. He left the sidewalk at a point between two automobiles which were parked at the curb about ten feet apart, and at that moment Mrs. George Snyder, one of the appellants, was driving her husband's automobile along the street, going south from Oak street toward Central avenue, and, as the appellee emerged from between the two parked automobiles, the man and the moving automobile came together, with the usual result.

The appellee testified that, when he came out into the street from between the two automobiles which were parked at the curb, he looked both ways, and saw the automobile approaching from the north; that the automobile was then about eighteen feet from him, and was traveling about fifteen miles per hour down grade; that he did not think he could cross ahead of the automobile, and he then attempted to back up, but was unable to avoid the car, and was struck by the front of the car, or the fender thereof, and knocked unconscious.

The appellant, Mrs. Snyder, testified that she was driving a Hudson coach, which is a closed car, south along Magnolia street at a speed of about twelve miles per hour; that it was raining, and on account of the accumulation of water on her windshield she could not see ahead except through the space on the wind shield covered by the action of an automatic windshield wiper; that she did not see the appellee at all until he fell against the side of her car about the point of the location of the windshield; the windshield being broken by the impact. Several other witnesses testified that the appellee started across the street, and, after he passed into the street from between the two parked cars, he stopped and swayed backward, and then apparently fell forward into the side of the moving automobile.

The appellee offered in evidence an ordinance of the city of Laurel fixing a maximum speed limit of twelve miles per hour on the streets of the city, while the appellant introduced in evidence an ordinance of the city providing for the marking of paths for pedestrians in crossing certain streets in the city, and providing that pedestrians in crossing said streets shall cross at the points so marked and between the lines; the parts of said ordinance which are here material being as follows:

"(1) Be it ordained by the mayor and commissioners of the city of Laurel, Miss., that the commissioner in charge of streets shall cause to be marked out by white lines, or lines of any conspicuous color, such lines to be not more than eight feet apart, the path to be used by pedestrians in crossing at the north, south, east and west crossings at the intersection of Oak street and Magnolia street, . . . the north, south, east and west crossings of the intersection of Magnolia street and Central avenue; . . . that the commissioner in charge of streets shall cause the markings to be renewed from time to time to the end that such markings shall at all times be easily seen by all persons using the streets.

"(2) That it shall be unlawful for any person to cross Oak street between the western boundary of Fifth avenue and the eastern boundary of Front street, or to cross Central avenue between the eastern boundary of Front street and the western boundary of Sixth avenue, or to cross Sixth avenue where it intersects with Central avenue, or to cross Commerce street at its intersection with Central avenue, or to cross Fifth avenue, Magnolia street, or Front street between the northern boundary of Oak street and the southern boundary of Central avenue except at the points so marked between the lines so indicated.

"(3) That it shall be unlawful for any driver of any motor vehicle to cross the lines so marked, or any one of them, at a rate of speed greater than eight miles per hour.

"(4) That any person violating sections 2 or 3 hereof shall upon conviction be fined not more than one hundred dollars, or be imprisoned not more than thirty days, or both."

The appellants contend that the jury should have been peremptorily instructed to return a verdict in their favor, and in support of this contention several points are stressed, among them being that the speed of fifteen miles per hour, the maximum speed fixed by the evidence, was not unlawful, and that, assuming the speed of fifteen miles per hour caused the accident, still under the law such speed was not negligent. The argument of counsel on this point is that section 2 of the Motor Vehicle Act (chapter 116, Laws of 1916 [section 5775, Hemingway's Code], fixes a maximum speed limit of fifteen miles per hour in an incorporated city, town, or village, and that the ordinance of the city of Laurel fixing a maximum speed limit of twelve miles per hour, which was enacted in 1914, was repealed by the said Motor Vehicle Act.

Section 5788, Hemingway's Code, being section 15 of chapter 116 of the Laws of 1916, the Motor Vehicle Act, provides that —

"Local authorities shall not pass any ordinance, bylaw or resolution, in violation or in conflict with any of the provisions of this act; provided, however, that nothing contained herein shall curtail or abridge the right of local authorities to enact ordinances, resolutions or by-laws, or prescribe rules and regulations affecting motor vehicles which are offered to the public for hire and to maintain and enforce the same."

Conceding that, by reason of this provision of the Motor Vehicle Act, the city ordinance is repealed by the act, a question which it is not here necessary to decide, still the position of counsel upon this point is erroneous. Section 2 of the said chapter 116, Laws of 1916 (section 5775, Hemingway's Code), provides:

"No person shall operate a motor vehicle on a public highway or street, avenue or alley of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property, or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than fifteen miles per hour, or elsewhere in any incorporated city, town or village at a greater rate of speed than fifteen miles per hour, or elsewhere outside of any incorporated city, town or village at a greater rate of speed than thirty miles per hour, subject, however, to the other provisions of this act."

This provision does not fix an absolute maximum speed of fifteen miles per hour in an incorporated city, town, or village, but the maximum speed allowed under this provision on a public highway, or street, avenue, or alley of any city, town, or village, is such rate of speed as is "reasonable and proper, having due regard to the traffic and use of the highway," or such as will not "endanger the life or limb of any person or the safety of any property." A greater rate than fifteen miles per hour on a street, avenue, or alley of an incorporated city, town, or village is absolutely prohibited, but a maximum of fifteen miles per hour is not thereby permitted under all conditions. To drive a motor vehicle on the streets of a city at a rate of speed of fifteen miles per hour under some conditions of weather and traffic may be negligent, and a violation of the Motor Vehicle Act, and, we think, under the proof in this record, the question of whether the driver of the automobile was guilty of negligence was one for the jury to determine.

The appellants assign as error the granting to the appellee of an instruction reading as follows:

"The court instructs the jury for the plaintiff that the plaintiff had a right to go upon or cross the street at any place he saw fit or desired to cross, regardless of whether or not it was a regular place for pedestrians to cross the street. And, if he used the proper vigilance in going upon or crossing the street, he was guilty of no negligence."

This instruction informs the jury that the appellee had the right to violate at will the provisions of the city ordinance fixing points for pedestrians to cross the streets and forbidding crossing at other points, and providing a penalty for violating the provisions of the ordinance. It in effect nullifies the ordinance, and must be held to be reversible error, unless the ordinance is an unreasonable exercise of the police power of the municipality, and consequently invalid. The proper control and regulation of traffic on the highways and at the congested centers of population is a problem of increasing difficulty, and one which is taxing the best thought of the governing authorities of our municipalities, and, since the advent of the motor-driven vehicle and other means of rapid transit, the great increase and concentration of population and traffic makes regulation of such traffic absolutely necessary for the protection of human life and of property, and, in order to make such regulations effective, the right to control the movement of pedestrians on the streets at the congested centers of traffic must be recognized and exercised. Regulations designating points for crossing streets and controlling the movement of pedestrians on the streets where population is concentrated and traffic is heavy, which, before the advent of the automobile and the great increase of population, business, and traffic, would have been arbitrary and unreasonable, may now, by reason of the changed and complex conditions, be entirely reasonable, and, in fact, necessary for the proper protection of life and property. In the recent case of Villageof Euclid, Ohio, v. Ambler Realty Co., 47 S.Ct. 114, 71 L.Ed. ___, decided November 22, 1926, in discussing the validity of a building zone ordinance, the supreme court of the United States used language which is applicable here; the court saying:

"Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise."

We think the ordinance in question is valid as a proper and reasonable exercise of the police power of the municipality, and that in attempting to cross the street between corners, in violation of the provisions of the ordinance, the appellee was guilty of negligence. Consequently, the instruction above quoted was erroneous, and, since the negligence of the appellee in attempting to cross the street in violation of the provisions of the ordinance necessarily contributed to his injury, the appellants were entitled to the requested instruction that the plaintiff was negligent in attempting to cross the street in violation of the provision, and that any recovery allowed should be reduced in the proportion that the plaintiff's negligence bore to the defendant's negligence.

The fact, however, that the appellee was negligent in attempting to cross the street did not relieve the driver of the car of the duty of exercising reasonable care and diligence to avoid the injury. The driver of an automobile must keep his machine constantly under control, and must continue on the alert for pedestrians or others who may be upon the streets (Ulmer v.Pistole, 115 Miss. 485, 76 So. 522), and he must at all times operate his automobile at a rate of speed that is reasonable and proper under the conditions with which he is confronted, having due regard always to the traffic and use of the street. Whether or not the driver of the automobile here involved was, under the conditions then surrounding her, guilty of negligence is a question which must be solved by the jury under proper instructions.

For the errors herein indicated, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.