280 N.Y. 124, 19 N.E. 2d 987, New York Court of Appeals

Facts
Anna Tedla and her brother, John Bachek (plaintiffs), were struck by a passing automobile, operated by the defendant, Ellman. Anna was injured and Bachek was killed. Bachek was a deaf-mute. The plaintiff had engaged in collecting and selling junk. They picked up junk at the incinerator of the village of Islip, New York. At the time of the accident, plaintiffs were walking along and wheeling baby carriages containing junk and wood. It was about six o'clock on a Sunday evening in December. Bachek was carrying a lighted lantern. The jury found that the accident was due solely to the negligence of the operator of the automobile. The place of the accident consisted of two roadways, separated by a grass plot. There were 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. The Vehicle and Traffic Law (Cons. Laws, ch. 71) provided 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." The plaintiffs did not and were not observing the statutory rule. At the time of the accident, they were proceeding in easterly direction on the east-bound or right-hand roadway.

Procedural history
The defendant moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. The trial judge left to the jury the question whether failure to observe the statutory rule was a proximate cause of the accident. The trial judge found for P, which the appellate division affirmed. On this appeal, D argues the pedestrians were contributorily negligent as a matter of law for violating the statute.

Ellman appealed an order from the Appellate Division affirming a judgment entered upon a verdict in favor of Tedla in their action for negligence.

Issue
Issue: Must a statute that the Legislature intended to preserve the life and limb of pedestrians be observed when observance would subject them to more imminent danger?

Holding
A statute that the Legislature intended to preserve the life and limb of pedestrians may not be observed when observance would subject them to more imminent danger.

Must a statute that the Legislature intended to preserve the life and limb of pedestrians be observed when observance would subject them to more imminent danger? No. A statute that the Legislature intended to preserve the life and limb of pedestrians may not be observed when observance would subject them to more imminent danger. 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. The Legislature in the first five subdivisions of section 85 of the Vehicle and Traffic Law has provided regulations to govern the conduct of pedestrians and of drivers of vehicles when a pedestrian is crossing a road. Until, by chapter 114 of the Laws of 1933, it adopted subdivision 6 of section 85, there was no special statutory rule for pedestrians walking along a highway. Then for the first time it reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided that pedestrians shall keep to the left of the center line of a highway. Here, the evidence showed that there were very few cars going east at the time of the accident, but that going west there was very heavy Sunday night traffic. Ordinary prudence would have dictated that pedestrians should not expose themselves to the danger of walking along the roadway upon which the very heavy Sunday night traffic was proceeding when they could walk in comparative safety along a roadway used by very few cars. D claims by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of law when they use the safer roadway, unless that roadway is left of the center of the road. 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. Under the Restatement of the Law of Torts, a plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type. That being so an "established rule" should not be weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where "by the very terms of the hypothesis" it can have no proper application. Obedience to a fiat cannot add to the danger. Negligence is failure to exercise the care required by law. Where a statute defines the standard of care and the safeguards required to meet a recognized danger, then, as we have said, no other measure may be applied in determining whether a person has carried out the duty of care imposed by law. Failure to observe the standard imposed by statute is negligence, as matter of law. On the other hand, 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. These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules when the injury might have been averted by variance therefrom, may be charged with fault. Statutes are intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. If Ps had observed the statutory rule of the road they would have proceeded easterly along the roadway on the left of the center grass plot, and then, it must be conceded, they would not have been struck by the automobile in which D was riding, proceeding in the same direction along the roadway on the right. Here the jury might find that Ps avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway, that D 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. Affirmed, with costs.

Legal Analysis
This is part of the violation of statute argument used under negligence per se. However, violation of statute will not be negligence per se if there is an excuse for that violation; such as the one given in this case. So the statute will create a general duty of care but that does not alleviate the common law duties of care nor the duty to act as a reasonable person under the same or similar circumstances. One such excuse for deviation is a greater and unreasonable danger being faced while adhering to the statute. We agree with the court that only a fool would walk on the side where the traffic is extremely heavy as opposed to walking on the side where the traffic is light. So part of the prima facie case related to statutes must include a determination whether the violation of the statute was excused.