
    The Standard Motor Sales Co. v. Miller.
    (Decided September 24, 1928.)
    
      Mr. W. 3. McMorris, for plaintiff in error.
    
      Messrs. Payer, Minshall, Karch & Kerr, for defendant in error.
   Sullivan, P. J.

This cause is here on error proceedings, and it is sought to set aside a judgment obtained against the plaintiff in error by the defendant in error, which parties were in the reverse order in the court of common pleas, the action being one arising out of personal injuries occurring on September 27, 1924, at about 4:30 p. m., on Euclid avenue, between East 102d and East 105th streets.

It appears from the record that the plaintiff below, Mary C. Miller, instead of crossing from the north side of Euclid avenue to the south side of Euclid avenue by way of the crosswalks at East 102d or East 105th streets, intended to cross over at a point between the cross-walks, and it appears from the record that as she left the curb, and had gone but some two or three feet therefrom, a servant and agent of the Standard Motor Sales Company, in attempting to park his car against the curb, started the car in reverse and collided with plaintiff below as she stood there watching the traffic in order to ascertain the safety of crossing over to the south curb.

It is charged that the court committed error in not sustaining a motion to direct a verdict for the defendant, and one of the serious complaints is that there was no ground for recovery, because an ordinance of the city of Cleveland, preventing pedestrians from crossing from one curb to another, except by way of crosswalks, was violated, which act, being negligence per se, prevented plaintiff from recovery.

In order properly to adjudge this question, it is necessary to disclose the fact that there was evidence tending to show that the defendant below also violated an ordinance of the city of Cleveland in backing his car without any warning, and it is claimed that this act was also negligence per se, and it is urged that by reason of these parallel facts in the record no recovery could be had.

We have examined the record to ascertain the exact status of the plaintiff with respect to crossing the street. The ordinance is to the effect that pedestrians who cross the streets, except upon crosswalks or intersections, do so in violation of the ordinance. However, from an analysis of the record there is evidence of a credible nature, which was submitted to the jury, that the defendant in error, instead of crossing the thoroughfare, was standing some two or three feet from the curb, examining the situation for the purpose of ascertaining the safety of what was apparently her original intention, and while in this mental and physical attitude she received the injuries complained of.

Prom this aspect of the record we think that the ordinance in question is immaterial, because its primary purpose applies to a pedestrian in the act of fulfilling the intention to cross, and in the physical act of crossing, and would not apply to a pedestrian who was found standing two or three feet from the curb, deliberating upon the safety or danger of remaining in that attitude or proceeding to cross the street.

It is true that the record is capable of another aspect, and that is,that the plaintiff had partially proceeded, at least to the extent of two or three feet, to cross the thoroughfare; but this aspect does not destroy the situation in the record above stated, that the plaintiff from her mental and physical attitude had not yet made up her mind to cross the thoroughfare, as she evidently originally intended.

The jury was justified in considering all the facts and circumstances pertaining to this feature of the case, and in determining the actual facts, for a reasonable inference in the record is that the plaintiff might not have crossed the' thoroughfare, even had there been no collision.

The claim is made that the violation of the ordinance established negligence per se on the part of the plaintiff below, and that there was nothing for the jury to consider, and that the motion to direct should have been sustained.

It must not be forgotten, however, that a vital problem submitted for the consideration of the jury was the proximate cause of the accident, and the jury had a right, as bearing upon this question, to consider all the facts and circumstances in the case, especially with reference to the alleged violation of the city ordinance on the part of both the plaintiff and the defendant. This doctrine of negligence per se certainly did not relieve the defendant below from the legal responsibility of exercising due care with reference to a pedestrian, even though the pedestrian was not conforming to the requirements of the ordinance relating to the crossing of streets.

The superstructure is the question of proximate cause, and, if the negligence of the defendant below was the proximate cause, then the injuries complained of happened because of the want of ordinary and proper care on the part of the defendant.

Negligence per se on the part of the plaintiff, even admitting for the moment that there is a basis to the claim, does not relieve the defendant from respect and obedience to the doctrine that requires the exercise of ordinary care; but, as heretofore stated, there is evidence of a credible nature in the record, tending to establish the fact that the plaintiff, with respect to crossing the street, had gone no farther practically than to form an intention to do so, provided the traffic warranted the venture; but, admitting, for the purpose of argument, that there was negligence per se, that doctrine did not relieve the defendant from an act of negligence which the jury, from the record, might determine was the proximate cause of the injuries. Payne, Dir. Genl. of Rds., v. Gordon, 14 Ohio App., 1; City of Dayton v. Taylor, Admr., 62 Ohio St., 11, 56 N. E., 480; Whitaker v. Duebbering, Admr., 101 Ohio St., 292, 128 N. E., 292; Decker v. Mitchell, 10 Ohio App., 438, paragraph 3 of the syllabus.

The doctrine which we apply in our analysis of the record and the law of the case is well laid down in Ivy v. Marx, 205 Ala., 60, 87 So., 813, 14 A. L. R., 1173, that a pedestrian in crossing a street diagonally at a place other than a street intersection, which is forbidden by ordinance under penalty, does not relieve the driver of an automobile upon the highway from the duty of maintaining a lookout for him. In the opinion the court says:

“The sole remaining question, therefore, is whether or not the municipal ordinance requiring pedestrians to cross the street at the street intersection, and not diagonally, punishing a violation of same by fine or imprisonment, has so changed the general rule as to the duty of the defendant to keep a lookout for pedestrians as to exempt him therefrom, when the pedestrian is crossing the street in a manner violative of such ordinance. It is plain there is nothing in the ordinance so indicating; but it is merely a traffic regulation, passed by the city to better conserve the public safety. It was certainly passed with a view to protect human life, and to give the ordinance a construction which %oould sanction a relaxation of vigilance on the part of drivers of automobiles upon the public streets would run counter to its evident intent. To construe the ordinance as contended by defendant would mean, in this case, that the defendant had the right, so far as any duty owing to the plaintiff as a pedestrian crossing the street at a place other than the street intersection was concerned, to drive his car blindly along such thoroughfare, and answerable only for wanton conduct or negligence after discovery of plaintiff’s peril. ’ ’

There is a long line of decisions in Ohio and many other states laying down the doctrine above quoted, but we deem it unnecessary to cite further upon this point.

From the case of Hine v. Eikler, 19 Ohio App., 510, 512, we quote the following for examination, because of the strong similarity of the facts in the two eases:

“The important question for consideration and the main specification of error is that the verdict and judgment are against the weight of the evidence.

“It is argued by plaintiffs in error that under the facts the defendant in error was clearly guilty of contributory negligence, and they rely on the cases of Schell v. DuBois, Admr., 94 Ohio St., 93 [113 N. E., 664, L. R. A., 1917 A, 710], and Chesrown v. Bevier, 101 Ohio St., 282 [128 N. E., 94], where the Supreme Court of Ohio laid down the rule that the violation of a statute passed for the protection of the public is negligence per se. * * *

“Assuming, without so deciding, that defendant in error was unlawfully at the place where the injury occurred, what then were her legal rights, and what duty did the plaintiffs in error owe to her ?

“Plaintiffs in error claim that under the eircurustances they owed her no duty. Their duty, however, rests on the broad maxim ‘sic títere tuo, ut alienum non laidas.’ We know of no law which would excuse any person from the duty to so use his property as not to injure others. The evidence clearly supports a violation of this maxim. But, under the rule, the negligence established against the plaintiffs in error would not permit a recovery if the technically illegal position of the defendant in error should be held to directly contribute in any degree to her injury. * * *

“In the case of Tackett v. Taylor County, 123 Iowa, 149, 98 N. W., 730, the court says in the opinion:

“ ‘It is not enough that had it not been for plaintiff’s disobedience of the law he might not have been present, and that the accident would not have happened. Most injuries would have been obviated had there been no one present to be hurb The disobedience, to defeat recovery, must have contributed directly to the injury. ’

“While these decisions may appear to be in conflict with the decisions in the Schell and Chesrown eases, we do not think they go that far, as the question of proximate cause is left to the jury.

“We are of opinion that the conduct of defendant in error was not such as could be considered to have directly contributed to her injury. The most that could be claimed against her was that by being illegally there she indirectly contributed to the injury. There is no efficient cause of the injury growing out of her conduct. In other words, her negligence, if any, was an independent matter. In any event the question of proximate cause was properly submitted to the jury.”

There is another assignment of error which is strenuously argued by able counsel for defendant, and that is that there is evidence in the record indisputably showing that the agent of defendant at. the time of the accident was not in the scope of his employment, which was that of a salesman for the defendant company, but an examination of the record shows that he was in charge of the automobile which caused the accident, and that it was necessary for him to have the use of it for the purpose of carrying on his business, which, apparently, from the record, was not limited as to time and place. His duties made him a free lance “to go wherever there was a prospect” in his efforts to sell the commodity of the master. That he incidentally might stop to buy a cigar, or to get some matches, or to do an errand for his mother, does not affect the law of the case, where the record shows that the demands of his business gave him freedom to go where he pleased, wherever there were human beings that might become customers for his principal, and whether these customers were in a barber shop, or a cigar store, where he may have purchased matches for his mother, would make no difference, so long as these acts did not detract from the main purpose and were in consonance with his general duties. To sever him from the master’s employment it would be necessary that the act performed be of such a divergence from his regular duties that its very character severed the relationship of master and servant. Things performed in an incidental way, either for himself or others, while he had the right to operate the defendant’s machine, for the purpose of performing his duty, do not relieve the master from liability for those negligent acts which were the proximate cause of the injury.

Holding these views, the judgment of the lower court1 is hereby affirmed.

Judgment affirmed.

Vickery, J., concurs.

Levine, J., not participating.  