Weinstein v. Wheeler , 127 Or. 406 ( 1928 )

ON THE MERITS. Plaintiff, who is a blind man, was struck by an automobile driven by the defendant. From a judgment in favor of the defendant, plaintiff appeals.

REVERSED AND REMANDED. REHEARING DENIED. Error is predicated upon the refusal of the court to give the following requested instruction:

"You are instructed that the blind and the halt have as much right to the use of the streets in the city of Portland, Oregon, as those who have possession of their faculties, and it is not negligence as a matter of law for a blind person to walk unattended, either without a companion or a cane, on a public street."

Defendant charges plaintiff with contributory negligence as follows: "(1) That he was unable to see and was not being accompanied by anyone who could see; (2) In failing to observe the automobile operated by the defendant herein; (3) In failing to continue the course across the street originally adopted by the said Jacob Weinstein and in turning around and running in the opposite direction; and (4) In negligently walking across said street under the circumstances." In the reply plaintiff admits that he is blind and was walking across the intersection at Third and Caruthers Streets alone. The trial court, after stating the issues relative to the defense of contributory negligence, instructed the jury that, for plaintiff to recover, it must find that he "was free from negligence and not guilty of any one or more of the acts of contributory negligence charged against him in the defendant's answer." In other words, the jury was advised that if plaintiff "was unable to see and was not being accompanied by anyone who could see," or "failed to observe the automobile operated by the defendant" he would be guilty of contributory negligence and could not recover. This instruction was equivalent to a directed verdict in view of the admission of plaintiff that he was blind and was unaccompanied at the time of crossing the street. However, no exception was taken to the court's charge in this respect and we refer to it only in consideration of the question as to whether plaintiff's rights were materially affected by the refusal of the court to give the requested instruction. In the first specification of negligence defendant says that plaintiff "was unable to see" and, in the next, complains that he failed to observe the automobile — notwithstanding he was blind. The first two allegations of negligence as charged against the plaintiff should have been withdrawn from the consideration of the jury and, no doubt, the trial court would have done so had its attention been directed to the matter. Permitting such allegations to remain in the answer invited error.

It is well settled that the instruction requested by the plaintiff is a correct statement of the law; Balcom v. City ofIndependence, 178 Iowa, 685 (160 N.W. 305, L.R.A. 1917C, 120);McLaughlin v. Griffin, 155 Iowa, 302 (135 N.W. 1107);Hefferon v. Reeves, 140 Minn. 505 (167 N.W. 423); Smith v.Wildes, 143 Mass. 556 (10 N.E. 446); Apperson v. Lazro,44 Ind. App. 186 (87 N.E. 97, 88 N.E. 99); Berry on Automobiles (5 ed.), § 232; Huddy on Automobiles (8 ed.), §§ 499, 589. No person or class of persons has an exclusive right to the use of the streets. Public thoroughfares are for the beggar on his crutches as well as the millionaire in his limousine. Neither is it the policy of the law to discriminate against those who suffer physical infirmity. The blind and the halt may use the streets without being guilty of negligence if, in so doing, they exercise that degree of care which an ordinarily prudent person similarly afflicted would exercise under the same circumstances. The true test to be applied to this case is: What would an ordinarily prudent person, who was blind and of the age and experience of the plaintiff, do to avoid injury upon hearing the sound of an approaching automobile when crossing the street? The mere fact, in itself, that plaintiff, while in a state of confusion, turned the wrong way does not constitute negligence unless it be said that he failed to act as an ordinarily prudent person would have acted under the same circumstances. Neither is it negligence, as a matter of law, for a blind person to walk upon the streets of a city unattended. Those who drive automobiles on the streets of a city and who observe, or in the exercise of reasonable diligence ought to know, that a pedestrian is blind must use care commensurate with the danger involved. It will not do to drive on under such circumstances and assume that one thus deprived of sight will jump the right way. The automobile should be stopped. The learned trial court had a true conception as to the law of the case, as evidenced by the charge in its entirety wherein the reciprocal rights and duties of the parties involved were, in a general manner, stated, but, in our opinion, plaintiff was entitled to the specific instruction requested. In view of the improper allegations of contributory negligence, it was error to refuse.

Since the case must be retried we deem it proper to add that what we have said is not to be construed as intimating our opinion as to the negligence of either party. Such is a question wholly within the province of the jury.

We think the trial court properly rejected the offer of plaintiff to introduce, relative to the issue of damages, letters written and received by him, prior to the accident, as to his intention to study for the concert stage. Plaintiff was permitted to show at great length his ability as a musician and the effect that the accident had upon his career, but it would be entirely too uncertain and speculative to allow plaintiff to tell what he proposed to do in the future. As stated by Mr. Justice McBRIDE inBrown v. Oregon-Washington R. N. Co., 63 Or. 396 (128 P. 38):

"A fair rule would seem in cases of this character to be that any evidence which would indicate fairly the capacity of the plaintiff to earn money in his usual vocation, and the probability of his being able to do so in the future should be admitted; but, where such evidence consists of mere guesswork and speculation upon what might happen in the future, it should be excluded. Such testimony in any court is seldom, or never, conclusive, and merely furnishes one factor in solving the equation of a man's earning capacity."

The judgment of the lower court is reversed and the cause remanded for a new trial.

REVERSED. REHEARING DENIED.

RAND, C.J., and BEAN and BROWN, JJ., concur.