Tedla v. Ellman

280 N.Y. 124, 19 N.E. 2d 987 (1939)

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Nature of the Case

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Facts

Anna Tedla and her brother, John Bachek (Ps), were struck by a passing automobile, operated by D. Anna was injured, and Bachek was killed. Bachek was a deaf-mute. Ds had engaged in collecting and selling junk. They picked up junk at the incinerator of the village of Islip. At the time of the accident, Ds were walking along and wheeling baby carriages containing junk and wood. It was about six o'clock, on a Sunday evening in December. Bachek was carrying a lighted lantern. The jury found that the accident was due solely to the negligence of the operator of the automobile. The place of the accident consists of two roadways, separated by a grass plot. There are no footpaths along the highway, and the center grass plot was soft. It is not unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances. The Vehicle and Traffic Law (Cons. Laws, ch. 71) provides that 'Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out, except that such pedestrians shall keep to the left of the center line thereof, and turn to their left instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving signals.' Ds did not and were not observing the statutory rule. At the time of the accident, they were proceeding in easterly direction on the eastbound or right-hand roadway. D moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. The trial judge left to the jury the question whether failure to observe the statutory rule was a proximate cause of the accident. The trial judge found for P, which the appellate division affirmed. On this appeal, D argues the pedestrians were contributorily negligent as a matter of law for violating the statute.