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.
While walking along a highway, respondents were struck by a passing automobile operated by appellant. One respondent was injured and the other was killed. At the time of the accident, respondents were walking to the right of the centerline of the road, in violation of N.Y. Veh. & Traf. Law § 85(6), because there was significantly less traffic to the right of the centerline. Appellant maintained that respondents were guilty of contributory negligence as a matter of law because of their violation of the statutory rule.
Whether a pedestrian who at the time of the accident failed to observe the “rule of the road” by not walking at the centerline, is automatically negligent.
The failure to observe a "rule of the road," even though embodied in a statute, did not constitute negligence as a matter of law where observance would subject a person to danger which could be avoided by disregard of the general rule. It does not become a matter of law a proximate cause of the accident. In this case, the pedestrians might have 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.