Action for personal injuries to a pedestrian struck by an automobile driven by defendant. On defendant's motion for a new trial, the Superior Court, Layton, J., held that a charge to the jury that if plaintiff was crossing a street in a recognized crosswalk with a green light in his favor, he had the right of way over vehicular traffic, but that one crossing a street under such circumstances is not completely relieved of the necessity of keeping a lookout for his safety, though the degree of vigilance required is less than if the crossing were not governed by a traffic signal because a pedestrian with a green light in his favor has the right to think that coming motor vehicles will stop at the red light against them, was not erroneous.
[48 Del. 186] Albert L. Simon, Stephen E. Hamilton, Jr., Wilmington, for plaintiff.
William Poole, Henry R. Horsey (of Berl, Potter & Anderson), Wilmington, A. James Gallo, Wilmington, of counsel for defendant.
Motion for new trial denied.
There are several grounds assigned for a new trial. I shall deal with only one of them at any length.
In the late afternoon of November 28 1952, after dark, plaintiff testified he walked up to the intersection of Twelfth and Washington Streets, in this city, with the intention of crossing from the east to the west side of Washington Street. He waited until the light turned green in his favor, looked and saw nothing approaching for a quarter of a block, and stepped into the street to cross. Then, in his own words-‘ I had gone four or five paces when I heard a woman's voice utter an exclamation; and at the same instant, out of the corner of my eye, I saw the bumper of a car within a few feet of my legs, and almost instantly I was struck and knocked forward.’ Plaintiff admitted that after first ascertaining that no traffic was within a quarter of a block of the intersection, he did not again look nor did he see the car which struck him until it was within a few feet.
Defendant claims error in my refusal to charge as follows:
‘ A person crossing a street or highway is required to make reasonable use of all his senses in order to observe an impending danger, and if he fails to do so, and is injured by reason of such failure, he is guilty of such negligence as will prevent any recovery for the injury sustained. A green light at a traffic intersection offers but a qualified permission to proceed and the [48 Del. 187] pedestrian crossing in reliance upon it must continually be on guard for his safety.’
Likewise, error is asserted in the following quoted portion of the charge which I did give in that connection:
‘ It goes almost without saying, I think, that a pedestrian crossing a street in a recognized crosswalk, and with a green light in his favor, has the right of way over vehicular traffic at that point, and the fact the crosswalk is not marked by white lines in no way lessens the pedestrian's right of way. * * *
‘ Now, I have said and will say again that if the plaintiff here was crossing with a green light in his favor in the crosswalk as defined to you he ...