Kalify v. Udin

This is an action of trespass on the case for negligence to recover damages for death caused by an alleged wrongful act. A jury in the Superior Court returned a verdict for the plaintiff for $1,500 and the case is before us on the defendant's exception to the denial of his motion for a new trial.

In crossing Taunton avenue, in the town of East Providence, the plaintiff's mother, Mary Kalify, by coming in contact with an automobile operated by the defendant, received injuries from which she died. The accident occurred opposite to the house numbered 410, which is on the north side of said avenue and midway between two cross streets several hundred feet away. The section is rural and not closely built up. At the place of the accident Taunton avenue runs approximately east and west. Its width between property lines is 60 feet. In the center is a cement roadway 18 feet in width. On each side of said roadway there is a car track having a gauge of 4 feet and 8 inches. The distance between the two car tracks is 26 feet.

The deceased, who had been visiting one of the families residing at #410 Taunton avenue, was assisted downstairs and to the sidewalk by Sadie Francis, a girl about thirteen years of age. The deceased was either 68 or 69 years old. When deceased and the girl reached the edge of the sidewalk the latter, according to her testimony, after looking and observing automobiles approaching from both directions, told the deceased to proceed across the avenue. It was dark at the time and the lamps on the approaching automobiles were lighted. It is apparent that the deceased, after starting to cross the avenue, looked to her left, that is toward the east, and passed closely in front of an automobile approaching from that direction and almost immediately thereafter came in contact with the defendant's automobile which approached from her right. Although there is some slight testimony to the effect that she was struck on the car track close to the south curb, it is reasonably certain that she came in contact with the left front mudguard of defendant's automobile while it was proceeding along and upon the southerly half of the cement roadway. There is no evidence that she at any time looked to her right or gave any attention to the automobiles approaching from that direction.

The deceased was negligent in failing to observe and heed the defendant's automobile approaching from the west.

It is well established that a person who attempts to cross a much traveled highway without looking in both directions and reasonably observing approaching vehicles is guilty of negligence as a matter of law.

In McKean v. Barker, 148 A. 599, this court said: "Plaintiff left a place of safety on the sidewalk and, without attempting to protect herself by her eyes, walked blindly across the street and either ran into defendant's car or was struck by it. She was responsible for her own injury." See also Jacobson v. O'Dette,42 R.I. 447; Beerman v. Union R.R. Co., 24 R.I. at 285.

There is nothing on the record to indicate that the defendant had a last clear chance to avoid the accident. The deceased crossed directly in front of another automobile, passing through the rays of the brightly burning headlights, when the defendant's automobile must have been close to the line of crossing. It was a rural section and there was no intersecting street or crosswalk at the place. It does not appear that the defendant was driving rapidly; on the contrary it is reasonably clear that he was proceeding at a moderate rate of speed. However, assuming that the defendant was negligent — which is extremely doubtful — the negligence of the deceased person bars recovery. Her own negligence either caused or contributed to the accident. SeeNystrom v. Eagle Cornice Co., 52 R.I. 80. Had she glanced to her right she would have seen the defendant's automobile and could have stopped before coming in contact with it. Plaintiff was negligent until the instant of contact, and she had a chance, at least as late as did the defendant, to avoid the accident.

Defendant's exception is sustained.

The plaintiff may, if he shall see fit, appear on April 11, 1932, and show cause, if any he has, why the case should not be remitted to the Superior Court with direction to enter judgment for the defendant.