Weinstein v. Wheeler

• Decision Date: 13 November 1928
• Parties: WEINSTEIN v. WHEELER. [*]
• Court: Oregon Supreme Court

271 P. 733

127 Or. 406

WEINSTEIN v. WHEELER. ^[*]

Supreme Court of Oregon

November 13, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Jacob Weinstein, a minor, by Rose Weinstein, guardian ad litem against Shanna C. Wheeler, to recover for injuries sustained by plaintiff, who is a blind man, when struck by an automobile driven by defendant. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See also 257 P. 20.

Abe Eugene Rosenberg, of Portland (Ralph A. Coan, of Portland, on brief), for appellant.

E. L McDougal, of Portland, for respondent.

BELT J.

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 Orgeon, 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 any one 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 any one 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 of Independence, 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, Automobiles (5th Ed.) § 232; Huddy on Automobiles (8th 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...