
    AGOSTINO CIPRIANO AND ROSE CIPRIANO, PLAINTIFFS, v. JOSEPH CASALLA, DEFENDANT.
    Argued May term, 1925
    Decided October term, 1925.
    Negligence — -Motor Vehicle Injury to Pedestrian — Not Contributory Negligence Per Se to Walk in the Roadway Instead of On the Sidewalk — Defendant Swerved to Wrong Side of Road, Hitting Plaintiff — In Such Case It is Not Error to Charge That There Was No Evidence of Contributory Negligence.
    On rule to show cause.
    Before Justices Parker, Minturn and Black.
    . For the plaintiffs, John J. Breslin, Jr., and William H. J. Ely.
    
    For the defendant, Abraham I. Fellman.
    
   Per Curiam'.

This action was tried before the court and a jury in the Bergen Circuit, and judgment was rendered for plaintiff Rose Cipriano for $2,500 and for Agostillo Cipriano for $500.

The action was brought by husband and wife for injuries to the wife, alleged to have been caused by defendant’s negligence in operation of his automobile.

The plaintiff wife was walking with two companions in a westerly direction, on the right-hand side in the roadway of a bridge in Lyndhurst, at seven A. m., on her way to work. The bridge was two. hundred and fifty feet long and fifty feet wide, and on either side thereof was a sidewalk for the use of pedestrians. The defendant was crossing the bridge, on his right side, in an easterly or opposite direction. His car suddenly swerved to the left, to the wrong side of the road, struck the plaintiff, and then swerved back to the right, crashing into the side of the bridge.

The defendant testified that he looked hack to see what was coming, and his wheel went to the left; that in an effort to avoid hitting plaintiff ho quickly swung to the right, but not in time to prevent the accident.

The first reason for the rule is error in the court’s charge that there was no evidence of contributory negligence. Ordinarily, the mere walking in the roadway, instead of on the sidewalk, is not contributory negligence per se. 12 Ann. Cas. 1018, and cases; Lynch v. Public Service Railway Co., 82 N. J. L. 712. The question, ordinarily, is one of fact for submission to the jury, but in the instant case it was taken from that category, by the fact that the defendant suddenly came from the right side of the road, and, taking the wrong side, struck the plaintiff. His presence on the wrong side of the road was something the plaintiff was not legally bound to anticipate, and her presence on the street, therefore, as against the defendant’s wrongful act, created no issue of fact for the consideration of the jury. Proximate cause and contributory negligence are questions, ordinarily, for the jury, but where facts are undisputed and susceptible of but one inference, the question then becomes one of law for the court. Mayor, &c., Baltimore v. Ferio, 128 Atl. Rep. (Md.) 353.

The next reason urged is that the amount awarded to the husband ($500) vras excessive. The wife’s injuries consisted of an oblique fracture of tibia of right leg, which left a three-quarter-inch shortening of the leg. She was confined in hospital in splints for two weeks, and had a cast on at home for three weeks. There was evidence that she would be unable to do heavy housework, such as washing or scrubbing, for three or four years.

The husband’s expenditures to the date of trial were $202. The doctor and hospital bills -were $37 and the domestic help $22o.

We think the ease presented a jury question, and that the damages, in view ol the extent of the injuries, cannot be said to be excessive in law. The rule will be discharged.  