Fletcher v. City of Aberdeen

• Decision Date: 30 April 1959
• Docket Number: No. 34844,34844
• Citation: 54 Wn.2d 174,338 P.2d 743
• Parties: Don FLETCHER and Fern Fletcher, his wife, Respondents, v. CITY OF ABERDEEN, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 174

54 Wn.2d 174

338 P.2d 743

Don FLETCHER and Fern Fletcher, his wife, Respondents, v. CITY OF ABERDEEN, a municipal corporation, Appellant.

No. 34844.

Supreme Court of Washington, Department 1.

April 30, 1959.

Lester T. Parker, Aberdeen, for appellant.

Paul O. Manley, Aberdeen, for respondents.

FOSTER, Judge.

This is a personal injury action in which the city of Aberdeen, defendant below, appeals from a judgment for the respondents, plaintiffs below.

For the purpose of placing electric wires underground, the city dug a ditch in the parking strip adjacent to the sidewalk at the intersection of Broadway and Fourth streets in the city of Aberdeen. Suitable barricades were erected to protect pedestrians from falling into the excavation, but, unfortunately, at the time of the mischap in question, one of the city's employees had removed the barriers to facilitate his work in the excavation. When he went elsewhere to work, he negligently failed to replace the barricades, which left the excavation unprotected. In approaching the intersection, the respondent husband, who had been blind since his eighth year, had his kit of piano-tuning tools in his left hand and his cane in his right. With the cane he was cautiously feeling his way. Because the protective barriers had been removed, the existence of the excavation was unknown to the respondent. By the use of the cane, the barriers would have protected the respondent if they had been in place. The jury was entitled to find that the city was negligent in removing the barriers without providing other warning.

Four of the city's assignments of error challenge the sufficiency of the evidence. The city's argument is that it had discharged its duty by the erection of barricades. It may be assumed for present purposes, that the barriers originally erected were sufficient to discharge the city's duty of maintaining its streets and adjacent parking strips in a reasonably safe condition for pedestrian use. However, the city's argument completely ignores the undisputed evidence that its workman had removed the barricades and that the accident in question occurred during this interval. The duty of maintaining the sidewalks and adjacent parking strips is a continuing one. Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55; Crawford v. Wilson & Baillie Mfg. Co., 8 Misc. 48, 28 N.Y.S. 514, affirmed 144 N.Y. 708, 39 N.E. 857; Blessington v. City of Boston, 153 Mass 409, 26 N.E. 1113. The evidence was amply sufficient, therefore, to take the case to the jury, and the court did not err in denying the city's motion challenging the legal sufficiency of the evidence or in the other motions raising the same question.

The city assigns error upon the giving of instruction No. 9. ¹ The city contends that this instruction places a higher degree of care upon it with reference to the parking strips than the degree of care required as to sidewalks. This argument overlooks instructions Nos. 7 and 7A in which the jury was told that the city was not an insurer and was required only to keep the streets and sidewalks in a reasonably safe condition, that this duty did not require a complete barricade but that only reasonable warning was required, and that it was a question of fact whether the city discharged this duty. The city is required to maintain its parking strips in a reasonably safe condition. Leonard v. Mel Foster Co., 244 Iowa 1319, 60 N.E.2d 532; Wendegatz v. Kansas City Gas Co., Mo.App., 217 S.W.2d 269; Burgess v. Kansas City, Mo.App., 242 S.W.2d 591; Rivers v. Town of Wilson, 233 N.C. 272, 63 S.E.2d 544; City of Holdenville v. Talley, 205 Okl. 693, 240 P.2d 761.

The city assigns error upon the refusal to instruct as requested that 'The fact that the plaintiff is blind does not impose on the City any higher degree of care.' The court was not dealing with this problem in Ulve v. City of Raymond, 51 Wash.2d 241, 317 P.2d 908; Ewer v. Johnson, 44 Wash.2d 746, 270 P.2d 813; and Morehouse v. City of Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482, relied upon by the city. The supreme court of Oregon recently commented '* * * 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. * * *' Weinstein v. Wheeler, 127 Or. 406, 257 P. 20, 271 P. 733, 734, 62 A.L.R. 574.

The statement of the law contained in the requested instruction was adopted by the Kansas City court of appeals in Hestand v. Hamlin, 218 Mo.App. 122, 262 S.W. 396, and in prior cases. However, all of them were overruled by the supreme court of Missouri in Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673, and Hanke v. St. Louis, Mo., 272 S.W. 933. ² We think the true rule is the one stated by Cook v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696, 699:

'* * * 'It is the general rule that those charged with duties respecting the condition of public ways open to pedestrians must exercise due and reasonable care to keep them reasonably safe for travel by the public, including those who are blind or suffer from defective vision or other physical infirmity, disability, or handicap, and are themselves exercising due care, under the circumstances, for their own safety. While a city or other authority or person owes no more than due, ordinary, or reasonable care toward a blind or other physically afflicted or handicapped pedestrian, in respect of the condition of walkways, the effect of the affliction or handicap may be considered in determining whether the required degree of care has been exercised, which seems a natural conclusion from the premise that such persons have as much right to use such ways as those physically sound, and in harmony with the proposition that the physical condition of the person injured is a proper matter for consideration in determining whether or not he has exercised the degree of care imposed upon him by law, as regards freedom from contributory negligence.' * * *'

Dean Prosser declares ³ that a blind person, or one with physical infirmities, is entitled to live in the world, and that his conduct must be reasonable in the light of knowledge of his infirmity. Dean Prosser's exposition of the law concludes with these two significant sentences:

'* * * It is sometimes said that a blind man must use a greater degree of care than one who can see, but this means nothing more than that he must take the precautions the ordinary reasonable man would take if he were blind. In theory the standard remains the same, but it is sufficiently flexible to take his physical defects into account.'

In Masterson v. Lennon, 115 Wash. 305, 197 P. 38, we approved this view of the law.

The city is charged with knowledge that its...