Becka v. Horvath

Donahue, J.

This appeal on questions of law, assigns just two alleged errors, one dealing with a given written instruction, and the other with the refusal to give a requested written instruction.

Plaintiff-appellee, a blind man, lived with defendant-appellant, a brother-in-law. Plaintiff rode with defendant to work daily. The regular habit was for the two men to leave the house together. Plaintiff would stop at the bottom of the steps. Defendant would back out of the garage and part way out of the drive. Plaintiff, after a wait of a minute or a minute and a half would then walk to where he knew the car was waiting, and get in.

On the morning in question defendant was forced to deviate a little. He was in a hurry, and backed off the strips forming the driveway and had to pull forward and start back again. Plaintiff waited the usual time and then walked to where he expected the car to be and defendant hit him, breaking his leg.

Trial resulted in a verdict for plaintiff.

The instruction complained of by defendant charged that defendant owed plaintiff “a greater degree of care” than if tbe plaintiff had not been blind. This, defendant alleges, told tbe jury, in effect, that defendant owed a greater degree of care than “ordinary care.”

Tbe use of tbe word “degree” in various cases and texts over tbe years has left us somewhat puzzled as to "when it should and when it should not be used. Some cases and authorities indicate that there is only one degree of care, i. e., ordinary care. Others use tbe term indiscriminately to signify tbe amount of care in a particular situation which will be ordinary care.

Actually tbe dispute over tbe use of tbe word must be resolved by a rule of thumb in each case. Did it in tbe particular case, taken with other written instructions and tbe court’s general charge, confuse or clarify tbe issue presented to tbe jury?

In our case, we feel that tbe use of tbe word “degree,” coupled with tbe rest of tbe court’s charge in no way tended to present an improper picture to tbe jury. We feel that, all in all, tbe jury could gather only tbe meaning that defendant owed the duty of no more than ordinary care and that tbe amount of care to be exercised would be greater because of plaintiff’s known handicap.

Tbe refused three paragraph instruction dealt with tbe use of tbe blind man’s “remaining faculties” with greater diligence, because of bis blindness.

A similar three paragraph requested instruction was given with regard to tbe sense of bearing.

Tbe court refused tbe instruction on tbe ground that it would unduly emphasize tbe duty required of tbe blind man. We are in agreement. We believe tbe two instructions which were so closely alike, would have been unduly repetitious, and since tbe sense of bearing was tbe most important, we feel that the court wisely chose that one and discarded tbe other.

Judgment affirmed.

Exceptions. Order see journal.

Brown, P. J., and Collier, J., concur.