The only point in dispute in the appeal is whether the fault of the plaintiff contributed as a cause to the automobile accident of 9 November 1928 (§ 9 Automobile Act, § 254 BGB). The Court of Appeal, which decided in the plaintiffs favour, denied this for the following reasons. Admittedly he acted carelessly, for that as a pedestrian he failed, before crossing the road, to ascertain whether an automobile was approaching. The co-defendant driver, however, was not prevented from avoiding the accident, which he could easily have done, and which was his duty. No adequate causal connection, therefore, existed between the plaintiffs conduct and the accident.
The complaint that in these explanations the concept of adequate causal connection was misunderstood is well founded. There can be no doubt that a natural causal connection existed between the plaintiffs conduct and the accident, for if he had not crossed the street at the very moment that the defendants automobile overtook Js cart, he could not have been struck by it. That was apparently the view of the judge of First Instance. But the facts must also be regarded as showing an adequate causal connection. Such a connection exists where an act or omission, generally, not only under especial and quite improbable circumstances which are not to be anticipated in the regular course of things, is capable of producing the result that occurred [references]. But in view of present traffic conditions, it cannot be accepted as inconceivable, that at the moment a pedestrian crosses the road, an automobile will pass over the same spot. The appellate judges seem to have been of the same mind; for they found a lack of foresight in the plaintiffs not looking round for any approaching automobiles, and therefore held him to have been at fault (§ 276 BGB).
Accordingly, the causation and fault of both parties must be balanced against each other according to § 9 of the Automobile Act and § 254 BGB. This balancing is essentially a matter for the trial judge and is reserved to the court below.
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