
    Valentine v. Pavilonis.
    
      (Decided October 31, 1927.)
    
      Mr. A. J. Dickson and Messrs. Howell, Roberts S Duncan, for plaintiff in error.
    
      Messrs. Day & Day, for defendant in error.
   Richards, J.

On the evening of November 25, 1926, Valentine started to walk south across Woodland avenue at East Eighty-First street in the city of Cleveland. Before completing his journey across the street, he was struck by an automobile driven by the defendant, and severely injured. Valentine brought an action to recover damages for the injuries so suffered. This action resulted in a verdiet and judgment for the defendant. This proceeding in error is brought to secure a reversal of that judgment.

The bill of exceptions discloses that the accident occurred ábout 6:20 p. m., and that the night was dark and rainy. Valentine had his hands in his overcoat pockets, and was walking leisurely across the street. There were two sets of street car tracks in the street; the north track being for west-bound traffic and the,south track for east-bound traffic. The plaintiff was struck by the defendant’s Buick coupe just after he had stepped across the north rail used for west-bound traffic. The plaintiff testified that as he reached the north curb of Woodland avenue he looked in each direction and saw no car approaching. He did not testify as to whether he looked in either direction after he left the curb.

It appears from the evidence that one Raddatz and his wife were driving in their machine west on Woodland avenue, following the defendant’s machine at a distance of 75 or 100 feet. The Raddatz car was traveling close to the north curb at about 18 miles per hour, and the car being driven by the defendant was traveling at approximately 20 miles an hour, The defendant had passed them on their left about two blocks east of East Eighty-First street, and was driving his car in the car track, with his right-hand wheels between the rails of the westbound track and the left-hand wheels in the devil strip. Raddatz testified that when the defendant’s car was from 150 to 200 feet east of Eighty-First street, and the Raddatz machine 75 to 100 feet back of the defendant’s machine, he saw the plaintiff step off the curb into Woodland avenue, that he walked leisurely, and that it took plaintiff about 15 seconds to walk from the curb to the point where he was struck, ftaddatz also testified that from the time plaintiff left the curb he did not see him look either to his right or left, that plaintiff was in plain view during all that time and he could see him clearly, although he was 75 or 100 feet to the rear of defendant’s car. He also testified that the defendant continued without changing the course or speed of his machine, and gave no signal by horn or otherwise. The defendant contended that he was not driving in the ear track, but over near the north curb, and that the plaintiff stepped from the curb immediately in front of his machine and' was struck within three feet of the north curb.

Under the circumstances -thus disclosed, the court, at the request of defendant’s counsel, gave to the jury before argument three several written instructions, and it is insisted by plaintiff that these contained material and prejudicial error and require a reversal of the judgment. For a reversal of the judgment the plaintiff depends chiefly on the claimed error in giving request No. 2, which reads as follows:

“I will say to you, as a matter of law, that your verdict should be for the defendant, Pavilonis, and against the plaintiff, Valentine, if you find by a preponderance of the evidence in this case that the plaintiff left the curb on the north side of Woodland avenue and walked from the curb to the point where he was struck by the defendant’s automobile without looking at all, either just before he left the curb, or while he was walking in the street,' for the approach of west-bound traffic on Woodland avenue,”

So far as the duty of plaintiff to look just before stepping from the curb is concerned, the matter is controlled by Section 6310-36, of the General Code, which provides:

“Pedestrians shall not step into or upon a public road or highway without looking in both directions to see what is approaching.”

The duty of the plaintiff after entering the highway is not regulated by statute, but depends upon the general principles of the common law, which require that he should exercise ordinary care for his own safety, and the amount of that care would depend upon the conditions and circumstances existing at the time and place. It will be observed that instruction No. 2 makes the case turn entirely upon the question of looking or not looking, regardless of whether the failure to look, if the plaintiff did so fail, was the proximate cause of his injury. Perchance, but for this instruction, the jury would have found that the proximate cause of the plaintiff’s injury was the failure of the defendant to give a warning by sounding the horn of his automobile or otherwise; and the jury might have found, but for this instruction, that, although the plaintiff was guilty of negligence, his negligence was not a proximate cause of the injury.

The plaintiff had the same right upon the public street as the defendant’s automobile, and there was no priority of right between them except in so far as the automobile could not turn aside as easily as the pedestrian. 'It was said by Spear, J., speaking for the Supreme Court, in Cincinnati Street Ry. Co. v. Snell, 54 Ohio St., 197, 205, 43 N. E., 207, 209 (32 L. R. A., 276):

“As matter of law, it is as nrnch the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle.”

In the course of the same opinion it is said, on page 208 (43 N. E., 210):

“We suppose the rule for street cars is the same as for other vehicles, and if the footman is required, in a crowded thoroughfare, to look up and down and wait until all possibility of collision is past, it would be like sitting on the bank until the stream should run by, and there would be but few hours in the busy part of the day when it would be practicable to cross.”

This language was used by the Supreme Court more than 30 years ago, and within that time the automobile has come into common use and has added very greatly to the congestion existing on city streets and to the speed with which traffic moves.

If the jury should believe, from the testimony, that the plaintiff, while standing on the curb, and just before stepping into the street, had looked to the east, and that he saw or should have seen defendant’s car approaching, they would have been justified in finding that the car was from 150 to 200 feet distant and that the Raddatz car was 75 or 100 feet still farther to the east, and might have concluded that plaintiff could, in the exercise of ordinary care, undertake to cross the street. In so undertaking to walk across the street, his only duty would be to exercise such care as persons of ordinary care and prudence are accustomed to exercise under those circumstances, and he would have the right to assume, in the absence of knowledge to the contrary, that drivers of vehicles in the street would themselves be exercising ordinary care.

In view of the congestion of the traffic in busy city streets, the cases are rare indeed when a trial judge can safely instruct the jury that a given act or failure to act on the part of a pedestrian in crossing the street is negligence as matter of law, unless it shall have been made such by statute or ordinance. Such a variety of circumstances exist, and so many unforeseen dangers may arise in crossing a busy street, that, in the vast majority of cases, the matter of ordinary care or its absence is distinctively one for the jury. Indeed, the trial court in this case evidently entertained that view, for, in the general charge, he used the following language:

“Now, it was not only his duty to exercise ordinary care with respect to looking, before he left the curb and stepped onto the street, but he was required to be in the exercise of ordinary care for his own safety as he continued to cross the street. It is not for me to say just what he was required to do in every state of fact, but it is for me to say to you that as he was crossing this street it was his duty to be in the exercise of ordinary care for his own safety, and, if he failed to exercise ordinary care for his own safety, such failure would be negligence, and, if such negligence existed and was the proximate cause of injury to him, then he would not be entitled to recover a verdict in this case.”

We think the statement above quoted is a careful and accurate statement of the law applicable to the issues in the case at bar.

Rules which may be applied concerning the duty of one about to cross the track of a steam railroad at a public crossing can have little application to the care required of one walking across a busy city street.

This court had occasion to consider the relative rights of a pedestrian crossing a public street and the driver of an automobile thereon, in the case of Clarkson v. Clark, 25 Ohio App., 377, 157 N. E., 910.

The plaintiff also insists that the trial judge erred in giving before argument the following written instruction at the request of the defendant:

.“I will say to you, as a matter of law, that, if you find from the evidence in this case that the plaintiff was injured because of the proximately concurring negligence of both the plaintiff himself and the de-’ fendant, then in that event your verdict should be for the defendant and against the plaintiff.”

We do not think the above request contains an accurate statement of the law, for it. confuses “proximate cause” with “proximately concurring negligence.” It is easy to conceive that negligence may be concurring, and indeed may be “proximately concurring,” and yet not be, strictly speaking, the proximate cause of the injury. The language just quoted is not an accurate statement of the rule of non-liability.

For the error in giving before argument the requests quoted, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.

Judges of the' Sixth Appellate District sitting in place of Judges Sullivan, Levine and Vickery of the Eighth Appellate District.  