There was no negligence per se by walking on the wrong side of the road because at that time it was safer to walk on that side.
Statutory violations do not constitute negligence in all circumstances. Here, pedestrians violated statute with good cause, only putting themselves in more danger, not the driver.
Policy: It’s reasonable to apply a statute if the rule is meant to protect the wronged party from the very harm in question. This statute was intended to protect the pedestrian, not the driver (who was here alleging contributory negligence for violating the rule).
Two pedestrians, while traveling east after dark over the southerly or right-hand road of a highway consisting of two roadways separated by a center grass plot, were struck by an automobile, which approached them from behind, and one was killed and the other injured. In these actions to recover therefor, a motion to dismiss the complaints on the ground that the travelers so injured, in walking east on the southerly or right-hand roadway, were violating subdivision 6 of section 85 of the Vehicle and Traffic Law, which provides that "pedestrians shall keep to the left of the center line" of the traveled part of a roadway, and that, consequently, they were both guilty of contributory negligence, was properly denied, where there was evidence that at the time of the accident traffic west along the northerly roadway was "very heavy," while traffic east on the southerly roadway was light. Under the circumstances, it cannot be said that pedestrians were guilty of contributory negligence as matter of law in choosing to walk on the roadway where the traffic was light. Ordinary prudence dictated that they should not expose themselves to the danger of walking on the roadway over which "very heavy" traffic was proceeding, and it is unreasonable to ascribe to the Legislature an intention that pedestrians should be charged with negligence as matter of law for acting as prudence dictates.
Tedla v. Ellman 19 N.E.2d 987 (1939)
(Per Se and Walking Near Traffic)
Sunrise 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 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." Mrs. Tedla and her brother did not observe the statutory rule and, at the time of the accident, were proceeding in easterly direction on the east-bound or right-hand roadway.
Whether the pedestrians were at fault, and whether their alleged fault was a proximate cause of the accident.
Vehicular traffic can proceed safely and without recurrent traffic tangles only if vehicles observe accepted rules of the road. Such rules, and especially the rule that all vehicles proceeding in one direction must keep to a designated part or side of the road -- in this country the right-hand side -- have been dictated by necessity and formulated by custom. The general use of automobiles has increased in unprecedented degree the number and speed of vehicles. Control of traffic becomes an increasingly difficult problem. Rules of the road, regulating the rights and duties of those who use highways, have, in consequence, become increasingly important. The Legislature no longer leaves to custom the formulation of such rules. Statutes now codify, define, supplement and, where changing conditions suggest change in rule, even change rules of the road which formerly rested on custom. Custom and common sense have always dictated that vehicles should have the right of way over pedestrians and that pedestrians should walk along the edge of a highway so that they might step aside for passing vehicles with least danger to themselves and least obstruction to vehicular traffic.
Disregard of the statutory rule of the road and observance of a rule based on immemorial custom, it is said, is negligence which as matter of law is a proximate cause of the accident, though observance of the statutory rule might, under the circumstances of the particular case, expose a pedestrian to serious danger from which he would be free if he followed the rule that had been established by custom. If that be true, then the Legislature has decreed that pedestrians must observe the general rule of conduct which it has prescribed for their safety even under circumstances where observance would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of law for acting as prudence dictates. It is unreasonable to ascribe to the Legislature an intention that the statute should have so extraordinary a result, and the courts may not give to a statute an effect not intended by the Legislature.
Where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances 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 statutory rule of conduct regulates conflicting rights and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. We may assume reasonably that the Legislature directed pedestrians to keep to the left of the center of the road because that would cause them to face traffic approaching in that lane and would enable them to care for their own safety better than if the traffic approached them from the rear. We cannot assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger.
The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong.
"What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case."
Here the jury might find that the pedestrians avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway; that the operator of the automobile was entirely heedless of the possibility of the presence of pedestrians on the highway; and that a pedestrian could not have avoided the accident even if he had faced oncoming traffic. Under those circumstances, the question of proximate cause, as well as the question of negligence, was one of fact.
Lack of adherence to the “rule of the road,” even when it is in a statute, is not negligence when adherence would subject the person to greater danger.