I join in the dissenting opinion of Judge Bliss. I do not favor a holding that a pedestrian walks on the right-hand side of the highway at his peril, even though he may be violating the statute. The general rule is that a pedestrian's violation of such statute is negligence but "such *Page 642 violation must be the proximate cause of the injury in order to prevent recovery, and whether such violation is the proximate cause is ordinarily a question for the jury." 3 Berry, Law of Automobiles, Seventh Edition, section 3.242. Cases supporting the above rule are: Sharick v. Galloway, 19 Cal.App.2d 693,66 P.2d 185; Gayton v. Pacific Fruit Express Co., 127 Cal.App. 50,15 P.2d 217; Summers v. Dominguez, 29 Cal.App.2d 308,84 P.2d 237; Scalf v. Eicher, 11 Cal.App.2d 44, 53 P.2d 368; Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; Gray v. DeBretton, La. App., 184 So. 390; Antoine v. Louisiana Highway Comm., La. App., 188 So. 443; Hollins v. Crawford, La. App., 11 So.2d 641; Mursky v. Brody, 13 N.J. Misc. 725, 181 A. 273; Hamilton v. Althouse, 115 N.J. Law 248, 178 A. 792; Tedla v. Ellman, 280 N.Y. 124,19 N.E.2d 987; Radford v. Young, 194 N.C. 747, 140 S.E. 806; Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; Blumb v. Getz, 366 Ill. 273,8 N.E.2d 620; Rowley v. Rust, 304 Ill. App. 364, 26 N.E.2d 520; Basque v. Anticich, 177 Miss. 855, 172 So. 141.
To illustrate the holding in a few of the cases, I quote from some of the opinions cited above, as follows:
Hollins v. Crawford, supra, La. App., 11 So.2d 641, 643:
"The rule regarding the duty of the pedestrian to walk on the left side of the road does not mean that if he does not he can be run down at will by any motorist. The same duty remains on the motorist to exercise the care and precaution circumstances require and by all means to sound a warning on approaching the pedestrian, as required by the Highway Act quoted from above. While it is true in this case that the interdict was violating the law, likewise was defendant Crawford, and in our opinion the proximate cause of the accident was the violation by defendant and that the violation by the interdict was only a remote cause."
Summers v. Dominguez, supra, 29 Cal.App.2d 308, 312,84 P.2d 237, 239:
"Assuming, however, that plaintiff may have been violating the section by walking on the right-hand shoulder of the roadway, *Page 643 which would constitute negligence per se, nevertheless it cannot be said as a matter of law such a violation of the statute proximately contributed to the injury of plaintiff. `In order that the negligence of a plaintiff may release a defendant from liability, such negligence must contribute proximately to the injury complained of; it must concur and cooperate with the negligence of the defendant up to the very time of the injury.' (19 Cal. Jur., p. 649.) Ordinarily such a question is for the jury to determine. (Smith v. Occidental etc Steamship Co.,99 Cal. 462, [34 P. 84].)"
Basque v. Anticich, supra, 177 Miss. 855, 860, 172 So. 141, 142:
"The court below granted appellee an instruction submitting to the jury the question of contributory negligence of appellant, in that she was walking on the highway in violation of section 5574, Code of 1930, the material part of which is: `All pedestrians walking along the public highway shall walk on the left side of the road, or in such way as to face the direction from which cars using that side of the road are approaching.' Appellant's testimony is that she was walking on the right side of the road and in the direction in which cars were moving on that side of the road. It was clearly a question for the jury as to whether or not she was negligent under the circumstances, and no error was committed in giving the instruction."
Rowley v. Rust, supra, 304 Ill. App. 364, 367, 26 N.E.2d 520, 521:
"The evidence shows without dispute that the deceased at the time in question did not comply with this provision of the statute and defendant argues, therefore, he was guilty of negligence per se and cannot recover. Defendant relies on Novina v. Padley, 258 Ill. App. 519, which sustains his contention. However, in the later case of Blumb v. Getz, 366 Ill. 273,8 N.E.2d 620, reversing 286 Ill. App. 623, 4 N.E.2d 49, the Supreme Court held (two judges dissenting) that notwithstanding this section a pedestrian walking on either the right or left unpaved shoulder of a highway in the day time and *Page 644 off the place provided for traffic could not be considered guilty of negligence as a matter of law. The opinion of the court seems to draw a distinction between a person so walking in the day time and one walking in the night time. The question of contributory negligence is usually for the jury, and the cases show that the courts are reluctant to lay down general rules as to what conduct will and what will not constitute contributory negligence. The right of pedestrians to use the highway is a fundamental right, and in view of this decision we are not disposed to hold that the violation of the statute, even in the nighttime, would, as a matter of law, amount to contributory negligence." (Italics ours.)
Hamilton v. Althouse, supra, 115 N.J. Law 248, 250, 178 A. 792, 793:
"The next question presented is whether there was, as a court question, contributory negligence on the part of the decedent. It is argued by counsel for the defendant that it was contributory negligence on the part of the defendant to walk on the right side of the road with his back toward approaching traffic. The amendment of 1930 (Pamph. L., p. 1033), [Comp. Stat. Supp., 1930, section 179-715R (502)], to section 3 of article 5 of the Traffic act, requiring pedestrians to walk on the left side facing wheeled traffic, was not called to the attention of the court. In any event, the failure of deceased to comply with it did not amount to negligence per se. We, therefore, consider that under the facts of this case the jury was entitled to decide whether in the conduct of the decedent there was negligence which contributed to the accident and this would not be a question for the court. Baker v. Fogg Hires Co., 95 N.J.L. 230, 232, 233 [112 A. 406]."
Scalf v. Eicher, supra, 11 Cal.App.2d 44, 52, 53 P.2d 368, 372:
"There is no statutory provision in California prohibiting the use by vehicles of the dirt portion or graveled part of the highway. The use of the word `otherwise' in the California statute, which does not appear in the Washington statute [Rem. *Page 645 Rev. Stat. of Wash. section 6362-41 (6)], makes it plain that it is unlawful in this state for a pedestrian to walk along a highway in any manner except `close to his left-hand edge of the highway'. In walking upon the right shoulder of the highway, decedent violated the law. This violation was negligence per se. Unless the violation of the law approximately contributed to the death of decedent, it would be immaterial. Whether or not the violation of the law proximately contributed to the death was a question of fact for the jury to determine."
I would reverse the trial court and hold that the question of whether the plaintiff was guilty of contributory negligence was for the jury.
BLISS and HAYS, JJ., join in this dissent.