Anna Tedla and her brother, John Bachek (plaintiffs), were struck by a passing automobile, operated by the defendant, Ellman.

There were no footpaths along the highway and the center grass plot was soft, and so it was both necessary and lawful for Tedla and Bachek with their baby carriage to use the roadway under such circumstances.

The defendant moved to dismiss the complaint on the ground, among others, that violation of the statutory rule (walking on the wrong side of the roadway) constitutes contributory negligence as a 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.

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

In effect, had they obeyed the letter of the statue, and walked on the left, they would have disobeyed its spirit, by putting themselves at greater risk.