280 N.Y. 124 (1939).

A seminal opinion establishing certain limitations to the doctrine of negligence per se in the law of torts.

Plaintiff was injured and her brother killed when they were struck by an automobile driven by Defendant as they walked along the shoulder of a road. At trial, the jury found that Defendant was negligent in his operation of his vehicle.

On appeal, Defendant argued that Plaintiff should be barred from recovering because she was walking in the same direction as traffic was moving, in violation of a statute that required pedestrians to walk facing traffic, thus making her contributorily negligent as a matter of law. Plaintiff argued that, because there were few cars heading east and westbound traffic was extremely heavy, ordinary prudence dictated that she would be exposed to danger by walking facing traffic on the westbound side of the road when she could walk in comparative safety by walking with traffic on the eastbound side.

Writing for the majority, Judge Lehman stated that, until the recent enactment of the statute, custom and common-sense dictated that pedestrians walk on the side of the road posing the least risk to the pedestrian. According to Judge Lehman, strict adherence to the statutory rule, which was enacted to protect pedestrians, would require pedestrians to observe the rule even when they would be placed at extreme risk, although acting prudently and following what had been the custom prior to enactment of the statute would enable them to avoid the risk. Judge Lehman concluded that it would be unreasonable to attribute such an intent to the legislature, and incorrect for a court to give a statute an effect not intended by the legislature.

Defendant analogized Tedla to Martin v. Herzog, 228 N.Y. 164 (1920), arguing that, just as the failure to have lights upon a carriage after dark in violation of a statute was held to be “‘negligence in itself”’ in Martin, Plaintiff’s walking with traffic in violation of a statute should also be deemed negligent. Judge Lehman responded by distinguishing the statute at issue in Martin, explaining that the statute requiring lights on carriages was a statute enacted to prescribe safeguards in addition to those imposed by custom and ordinary prudence, and thus defined the duty and standard of care in rigid terms. According to Judge Lehman, adherence to the statute could not add to the danger the legislature intended to prevent when it enacted the statute, nor could there be a situation in which strict adherence to the statute would result in danger to the life, limb, or property of another, or to the person adhering to the statute. By contrast, Judge Lehman wrote that the statute in Tedla, which required pedestrians to walk facing traffic, was a statute providing a rule of the road to be adhered to under ordinary circumstances. When circumstances were out of the ordinary, strict adherence to the rule might defeat the purpose of the rule and result in disaster. According to the court, a person is negligent when he fails to exercise the care required by law. When a statute, such as the statute requiring lights on carriages, defines the standard of care and the requisite safeguards to be taken, no other measure such as custom or ordinary prudence may be considered when determining whether the duty of care imposed by law was carried out. It is negligence as a matter of law, stated Judge Lehman, to fail to observe the standard imposed by the statute. However, where a statute fixes no definite standard of care that, under all circumstances, would tend to protect life, limb, or property, but merely codifies or supplements a common-law rule, which has always been subject to limitations and exceptions, or where the statute regulates conflicting rights and obligations in a manner calculated to promote public convenience and safety, then, absent clear language to the contrary, the statute should not be construed as intending to eliminate the limitations and exceptions attached to the common law duty. Nor should the statute be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions where its observance might cause accidents.

Judge Lehman concluded that it was reasonable to assume that, in directing pedestrians to walk facing traffic, the legislature believed that pedestrians could best care for their safety by observing the traffic as it approached.  He stated that it was not reasonable to assume, however, that in enacting a statute to protect pedestrians, the statute must be observed when adherence to the statute would place the pedestrian in imminent danger when the danger could be reduced or avoided by nonadherence.  Judge Lehman continued by citing authority for the proposition that strict compliance with a statute such as that at issue in Tedla, when an obvious risk is present, could result in the actor being held at fault when the risk could have been avoided by acting otherwise. However, he cautioned, varying from the duty imposed by the statute without good cause is a wrong and the actor will be responsible for damages resulting from his wrongful conduct.

In addressing the issue of causation, Judge Lehman stated that the questions whether Plaintiff was at fault and whether her alleged fault was the proximate cause of the accident could not be discussed separately. Judge Lehman granted that, had Plaintiff observed the statute, she would have been on the other side of the road and would not have been struck by the defendant’s vehicle; however, he referred to that fact as “a statement of an essential condition,” not the cause of the accident.  According to Judge Lehman, a jury might find that the plaintiff reduced the risk of danger by walking with traffic, that the defendant did not consider the possibility that a pedestrian might be upon the road, and that the plaintiff could not have avoided the accident even if she were facing traffic. “[T]he question of proximate cause, as well as the question of negligence, was one of fact,” to be decided by the jury.

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