Myrtle Looney, Appellant, v. Patrick Anthony Castellano, Appellee, 279 F.2d 215 (4th Cir. 1960)

Late in the afternoon of December 9, 1956, plaintiff (appellant), a woman sixty-two years of age, was injured when struck by a car driven southward by the defendant, Castellano, as she attempted to cross, between intersections, a heavily traveled public highway. She had alighted from an automobile which had been traveling northward and had stopped on the easterly unpaved berm. As she was crossing to the westerly side, she dropped a package near the center of the paved portion of the highway, stopped to retrieve it and resumed her crossing. As she neared the westerly edge of the roadway the accident occurred. The evening was dark and foggy, rain or mist was falling, visibility was poor and the road was wet. A jury returned a verdict in favor of the defendant. Plaintiff complains that Castellano should have observed her in time to stop his car before she was struck, and that the trial judge erred in his charge to the jury.

Evidence was presented at the trial concerning the pertinent facts and circumstances, including weather and roadway conditions, the amount of vehicular traffic, the speed of the defendant's automobile and Castellano's efforts to avoid the collision after he observed the plaintiff in his southbound traffic lane.

Although plaintiff appeared pro se in this court, she was represented by counsel in the District Court. We have carefully examined the court's charge to the jury even though no objection was made thereto and we find no error therein. Whether or not the defendant was guilty of actionable negligence posed a purely factual question which was properly presented for jury determination.

Affirmed.