Tedla v. Ellman

Facts

While walking along a highway, the Plaintiff, Tedla, and her brother, Bachek, were struck by a passing automobile, operated by the Defendant, Ellman. The Plaintiff was injured and her brother was killed. Bachek was a deaf-mute. The Plaintiff and her brother’s occupation was collecting and selling junk, which they often picked up at an incinerator at a nearby village. At the time of the accident, they were walking along a highway wheeling baby carriages containing junk and wood which they had picked up at the incinerator. It was around six o’clock on a Sunday evening in the winter. Darkness had already set in. Bachek was carrying a a lighted lantern at the time.

The highway at 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, but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably prudent person would use. The Vehicle and Traffic Law provides that pedestrians walking or remaining on the paved portion, or traveled part of a roadway to 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.

The Plaintiff and her brother did not observe the statutory rule, and at the time of the accident were proceeding in a direction towards the east on the east bound or right hand roadway. The Defendant filed a motion to dismiss the complaint on the ground that the statutory violation constituted contributory negligence as a matter of law.