Eckhardt, Donald D.

English

Marquette University Law School

Marquette Law ReviewVolume 38Issue 3 Winter 1954-1955 Article 8Contributory Negligence - Affect of Plaintiff 'sKnowledge of Customary SpeedingDonald D. EckhardtFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationDonald D. Eckhardt, Contributory Negligence - Affect of Plaintiff 's Knowledge of Customary Speeding, 38 Marq. L. Rev. 216 (1955).Available at: http://scholarship.law.marquette.edu/mulr/vol38/iss3/8RECENT DECISIONContributory Negligence-Effect of Plaintiff's Knowledge ofCustomary Speeding-Plaintiff was struck by defendant's carwhile she was attempting to cross a street near an intersection. Apolice officer testified that there were 25 mile-an-hour speed limit signsposted on both sides of the intersection, and on cross-examination waspermitted to testify, over plaintiff's objections, that the average speedtraveled by motorists at the time of the day at which the accidentoccurred was "about 30 miles an hour.'" Plaintiff had crossed the streetat this point intermittently over a five year period. Held: That thetestimony as to the average speed traveled by motorists was admissibleas evidence of a custom bearing on the issue of contributory negligence.It was admissible for the purpose of acquainting the jury with all thefacts and circumstances at the time of the accident necessary in thedetermination of this issue. Cucinella et al. v. Weston Biscuit Co., Inc.,265 P.2d 513 (Cal. 1954).In the dissenting opinion Judge Carter disagreed with the majorityview because such evidence was prejudicial to the plaintiff, for it couldonly be considered by the jury to excuse the negligence of the defendant."The standard of care required of persons under given cir-cumstances is not to be established by proof that others have beenin the habit of acting in a certain manner," ... "a mere custom orusage cannot make due care out of conduct that is, in fact, negli-gence under the circumstances disclosed by the evidencep. 521It is settled law that the specific practice of others cannot be ad-mitted in testimony as an excuse for the alleged negligent act of thedefendant.1 Therefore, evidence such as this should not be admitted.2This viewpoint is supported by some courts,3 but there are twoerrors apparent in the minority opinion. First, while the law cited iscorrect, the application to the facts is wrong. The cases referred to bythe plaintiff involved attempts on the part of a defendant to show thathe was not negligent, that he was following a custom, and thereforewas in the exercise of due care.4 They were not cases in which thedefendant attempted to prove contributory negligence on the part of1 Elswick v. Charleston Transit Co., 128 W. Va. 241, 36 S.E.2d 419 (1945).2 "Evidence of custom in conflict with statutory duty of defendant is not ad-missible." Frame v. Arrow Towing Service, 155 Or. 522, 64 P.2d 1312 (1937)."A statute cannot be nullified and made inapplicable in a case by proof of acustom which conflicts with it. A custom or usage repugnant to the expressprovisions of a statute is void." Allen v. Mack, 345 Pa. 467, 28 A2d 783(1942).3 Frame v. Arrow Towing Service, supra, note 2; People v. Crossan, 87 Cal.App.5, 261 P. 531 (1927) ; 144 A.L.R. 827 (1943); 61 C.J.S. Motor Vehicles §516 (f).4Allen v. Mack, supra, note 2; Huey & Philp Hardware Co. v. McNeil, 111S.W2d 1205 (Tex., 1937).RECENT DECISIONSthe plaintiff by showing that the plaintiff had knowledge of a customwhich increased the danger to the plaintiff during the time he wasdoing a specific act. Second, the reasoning is confused. Does not allcontributory negligence, in effect, excuse the negligence of the defend-ant? In those states still adhering to the common law rule that anycontributory negligence is a complete bar to recovery on the part ofthe plaintiff it certainly has this effect. While it may not be a completebar in states such as Wisconsin, it does excuse a part of the defendant'snegligence by reducing his liability for the injuries he has caused tosomething less than 100 per cent.The majority opinion of the court can be supported by legal reason-ing. Contributory negligence is generally defined as some act or omissionon the part of the injured person which caused or contributed to hisinjury, and which would not have been done or omitted by a personexercising ordinary prudence under the same circumstances.5 Whilethe standard of due care does not vary, the amount of caution neces-sary to constitute due care varies in direct proportion to the dangerknown to be involved in the undertaking.6 A person walking across aseldom used street would not have to exercise the same amount ofcaution as a person crossing a heavily traveled street.Ordinarily, a pedestrian has the right to rely on the exercise of duecare by the driver of a car, and need not anticipate the negligence ofa motorist.7 If, however, the pedestrian has actual or constructiveknowledge of such negligence, and of the danger created thereby, hemust use the degree of care under the circumstances to avoid beinginjured that such knowledge requires a reasonable person to use.sHence, knowledge of a custom which increases the danger causesthe amount of caution required to increase in proportion to the danger.9This results even though the custom is in itself negligent, such as thecustomary violation of a speed limit.10Evidence of the average speed traveled at the particular place of theaccident is admissible to show that the plaintiff failed to exercise theamount of caution required under the circumstances. If this evidenceis not admitted it might be found that the plaintiff exercised due care5 Walsh v. West Coast Coal Mines, 197 P.2d 233 (Wash., 1948); RESTATEMENT,TORTS §463.6 ".. .and the care required is proportionate to the danger involved, under allthe circumstances of the particular case." 61 C.J.S., supra, note 3, §457; Adairv. Valley Flying Service, 196 Or. 479, 250 P.2d 104 (1952).7 Jacoby v. Johnson, 190 P.2d 243 (Cal. 1948), 144 A.L.R., supra, note 3.8 61 C.J.S., supra, note 3, §468 (b) and cases there collected.9 Supra, note 6.10 "The amount of care necessary in crossing a street or highway depends on theattendant circumstances and the danger involved, and the pedestrian must usethat degree and amount of care which the usual and actual traffic conditionsof the thoroughfare require." 61 C.J.S., supro, note 3, §527 (i) (3) and casesthere collected.1955]MARQUETTE LAW REVIEWin crossing, when, in fact, because of his knowledge of the custom, hedid not exercise the necessary amount of care.Legal authority also supports the view of the majority."".. - the custom here cannot be invoked to supersede ornullify the ... statute. But it does not follow that such customcannot be considered in determining whether plaintiff was freefrom contributory negligence."12"If defendant violated the statute . . . plaintiff was notthereby excused from exercising ordinary care on his part.' 31Wisconsin has held that the violation of a statute fixing a speedlimit for automobiles on a highway does not in itself deprive the de-fendant of the defense of contributory negligence. 14"Such regulations are not intended to abrogate the duties oftravelers recognized by the common law for their mutual safety,and leaves them subject to its accepted rules of ordinary care andthe duties that spring from their relations as travelers on a publichighway." p. 444."From this it results that in all cases where it is shown thata person operating a motor vehicle in excess of the speed fixedby law, causes another traveler personal injuries, the questionpresented is whether, under all the facts and circumstancesshown, his conduct amounts to gross negligence, and thus pre-cludes him from asserting the defense of contributory negli-gence; and if such operator is found guilty of only a want ofordinary care, which proximately caused the collision and con-sequent injuries, then he is entitled to assert the defense ofcontributory negligence." p. 445.This case has been approved on a number of occasions.'5 The lan-guage of the court in this and other cases'5 is broad enough to justifythe conclusion that in Wisconsin evidence of customary violation wouldbe admissible on the issue of contributory negligence.11Ritter v. Hicks, 102 W. Va. 541, 135 S.E. 601 (1926); Altsman v. Kelly, 336Pa. 481, 9 A.2d 423 (1939) ; Desiarlais v. Kelley, 299 Mass. 182, 12 N.E2d 190(1938) ; Mann v. Standard Oil Co., 129 Neb. 226, 261 N.W. 168 (1935) ; Han-sen v. Connecticut Co., 98 Conn. 71, 118 A. 464 (1922); 172 A.L.R. 1141 andcases there collected, "According to the weight of authority, evidence of acustom which is contrary to a statute or ordinance is not admissible, but it hasbeen held admissible on the question of contributory negligence." 61 C.J.S.,supra, note 3, 61 C.J.S., supra, note 4.'2 Langner v. Caviness, 238 Iowa 774, 28 N.W.2d 421 (1947).'1 Saddler v. Parham, 249 S.W.2d 945 (Ky. 1952).14Ludke v. Burck" 160 Wis. 440 (1915). The statute involved in this case wasWis. STATs. (1915) §1636-49, which was repealed in 1929, but which, in sub-stance, is Wis. STATs. (1953) §85.40.15 Zimmermann v. Mednikoff, 165 Wis. 333 (1917) ; Foster v. Bauer, 173 Wis. 231(1921); Hopkins v. Droppers, 184 Wis. 400 (1924); Bentson v. Brown, 186Wis. 629 (1925); Hillside Garage & Transit Co. v. Pflittner, 206 Wis. 26(1929) ; Umlauft v. Chicago, M., St. P., & P. R. Co., 233 Wis. 391 (1940);Roswell v. Chicago, M., St. P., & P. R. Co., 240 Wis. 507 (1942).26 Grohusky v. Ferry, 251 Wis. 569, 30 N.W.2d 205 (1947) where the court said,"It is true that on a country highway a motorist traveling at the higher rateof speed is entitled to entertain a reasonable expectation that pedestrians willtake account of the country speeds in yielding the right of way."[Vol. 38RECENT DECISIONSIt appears that the defendant should be entitled to show the amountof caution required by the plaintiff as a matter bearing on the issue ofcontributory negligence; and in order to show the amount of cautionrequired, it is necessary to show the danger involved in the undertaking.Therefore, any custom which tends to increase the danger is a materialfact, and testimony as to the custom should be admissible in evidence."DONALD D. EcKEAmr17 Supra, notes 6, 10, and 11.1955]

Contributory Negligence - Affect of Plaintiff\u27s Knowledge of Customary Speeding

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Contributory Negligence - Affect of Plaintiff\u27s Knowledge of Customary Speeding

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