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05/23/51 LARKINS v. KOHLMEYER

Filed: May 23, 1951.

LARKINS
v.
KOHLMEYER



From the Vanderburgh Circuit Court, Ollie C. Reeves, Judge. (Transferred from the Appellate Court pursuant to § 4-209, Burns' 1946 Replacement.)

Draper, J.

Author: Draper

Action by appellee against appellant to recover damages for personal injuries sustained in an automobile accident. Verdict for $3,000.00, motion for new trial overruled, and error assigned in the overruling thereof.

The evidence is sharply conflicting. That most favorable to the appellee discloses that he was standing on the northwest corner of the intersection of Main Street and Broadway in the business district of Princeton, Indiana, in the daytime. When the light turned green for traffic going north and south, he started to walk south across Broadway on the west side of Main Street. The appellant, who was driving an automobile south on Main, also entered the intersection from the north on

the green light. He was proceeding at the rate of 25 miles per hour and made a right-hand turn. At a point in the cross-walk area some 8 or 10 feet south of the north curb the appellee was struck by the front bumper. He was knocked about 20 feet. The appellant did not sound his horn at any time. He testified he did not see the appellee before he struck him, and the appellee testified he did not see the automobile before he was struck.

It is asserted that the appellee was guilty of contributory negligence as a matter of law. The question of contributory negligence is ordinarily one for the jury. It is always so where the facts are in dispute, or reasonable men could fairly draw different inferences from undisputed facts. Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629, and authorities therein cited. The appellant says the appellee was negligent in stepping from the curb into the path of the automobile without looking in the direction from which it was approaching, although it was in plain view. Knowing, as we do, that the appellee was progressing at an ordinary gait on foot, and assuming, as we must, that the automobile was travelling 25 miles per hour, it is apparent that the appellee could not have suddenly stepped into the path of the automobile. Even if the appellee had looked and seen the automobile coming up behind him when he stepped from the curb, he could not know that he was entering that part of the street which the driver of the automobile intended to occupy, for he had no way of knowing the automobile would turn right into Broadway.

It was the appellant's duty to anticipate that a pedestrian might be attempting to walk south across the street on the green light, and it was his duty to see and know whether there was a pedestrian in his path in broad daylight. Fields v. Hahn

(1945), 115 Ind. App. 365, 57 N.E.2d 955. The appellee had the right to assume that a driver would be keeping a lookout sufficient for that purpose. In the absence of knowledge to the contrary, he was not required to anticipate that the appellant would drive into the intersection at an unlawful speed, and would make a right hand turn without any warning of his intention so to do, and that he would fail to yield the right of way to a pedestrian lawfully within the intersection, all as required by statute. Rentschler v. Hall (1947), 117 Ind. App. 255, 69 N.E.2d 619.

Assuming, however, that the appellee was negligent in failing to keep a sufficient lookout for vehicular traffic, it was still for the jury to say whether such negligence was a contributing cause of his injuries, or, in other words, whether his negligence was contributory negligence. King v. Ransburg (1942), 111 Ind. App. 523, 39 N.E.2d 822, 40 N.E.2d 999. If, while crossing the street, the appellee had looked to his left and had seen the car rounding the corner at 25 miles per hour, it is problematical whether he could have dodged it, and it is apparent he could have avoided injury in no other way, for the appellant never saw him at any time. We think the question of contributory negligence was clearly one for the jury in this case.

Burns' 1940 Replacement, § 47-2023(a) provides that:

"No person shall . . . turn a vehicle from a direct course on a highway unless and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement . . ."

Burns' 1940 Replacement (1949 Supp.), § 47-1905 provides that:

"Whenever traffic is controlled by traffic control signals . . . exhibiting different colored lights successively, the following colors only shall be used and said . . . lights shall indicate and ...


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