Floyd v. Lipka

This appeal is concerned with the question of whether a minor plaintiff, about to cross a street intersection after looking before entering the street and again looking when she stepped off the curb, was guilty of contributory negligence as a matter of law for failing to look thereafter.

Viewing the evidence, as we must, in the light most favorable to plaintiff, the facts are substantially as follows: At about seven o’clock in the evening of November 4, 1955, the minor plaintiff, a young girl twelve years of age (plaintiff), and a girl

Before proceeding to cross Harrison Street, plaintiff looked for traffic on Harrison Street in both directions. She saw several cars stopped at the intersection on Harrison Street, on the south side of Lancaster Avenue, in obedience to the stop sign. From the north she saw no traffic except several cars parked at the west curb of Harrison Street. Plaintiff stepped off the sidewalk. She paused and looked around to see if her friend was following her. Then she looked again in both directions for traffic on Harrison Street, with the same result. She then proceeded to cross. She did not look thereafter. When plaintiff had reached a point in the intersection approximately four feet from the west curb of Harrison Street, she was struck by the right front fender of defendant’s automobile proceeding in a southerly direction on Harrison Street. Plaintiff did not see defendant’s car before it struck her. Defendant admitted to plaintiff’s mother that he had been in his uncle’s saloon located on the northwest corner of Lancaster Avenue and Harrison Street.

At the trial defendant moved for a directed verdict for defendant. The trial judge in granting defendant’s motion stated that it was apparent that if plaintiff had looked again after she reached approximately the center of the intersection, she would have seen defendant’s car approaching and could have avoided being hit. This appeal is from the judgment entered upon the trial judge’s order.

We think that the question of plaintiff’s contributory negligence was for the jury to determine and that the trial judge erred in holding as a matter of law that plaintiff was guilty of contributory negligence for failing to look again or to continue to look while crossing the intersection.

Plaintiff was under a duty at all times when she entered the intersection to use ordinary care to protect herself against accidents. That care is such as a reasonable and prudent person under the circumstances of the case would exercise to prevent herself from being injured. It must be in proportion to the danger to be avoided. Parvis v. Philadelphia, W. & B. R. Co., 8 Houst. 436 , 17 A. 702 . At a street intersection it was her duty to observe traffic conditions, particularly the movement of traffic in the intersection.

Defendant was under a duty to operate his motor vehicle in a careful and prudent manner, having due regard to the circumstances. It was his duty to observe the stop sign at the intersection. Title 21, § 4143, Del. C. 1953 provides that it shall be unlawful for a driver of a motor vehicle (1) to fail to stop in obedience to such a sign, and (2) after coming to a full stop, to enter or cross such intersection until such movement can be made in safety. The evidence does not disclose whether or not defendant stopped at the stop sign, but it does show that defendant’s motor vehicle entered the intersection and struck the plaintiff. For the purpose of defendant’s motion, his negligence was necessarily conceded.

Defendant was under a further duty to yield the right of way to plaintiff. In 21 Del. C. § 4138(c), 1953, it is provided that “the driver of a vehicle upon a highway within a business or a residence district shall yield the right of way to a pedestrian crossing such highway within any clearly marked

Contributory negligence becomes a question of law for the court’s decision only when the court is impelled to find from the facts that reasonable men can draw therefrom but one inference pointing clearly to the negligence of the plaintiff contributing to the accident. Nailor v. Maryland, D. & V. R. Co., 6 Boyce 145 , 97 A. 418 . In making such determination a court will, of course, view the evidence in the light most favorable to plaintiff. In this case the stop sign was with plaintiff. Therefore her right of way was superior to that of defendant approaching the intersection on Harrison Street. Snyder v. Nehila, 184 Pa. Super. 89 , 132 A. 2d 355 . She had the right to assume that a motor vehicle proceeding on Harrison Street would stop at the stop sign and would not enter the crossing until the operator thereof could do so with safety. Newman v. Protective Motor Service Co., 298 Pa. 509 , 148 A. 711 . See Annotation of cases in 164 A. L. R. at page 64.

The judgment of the Superior Court is reversed and a new trial granted.