This is a personal injury action in which the city of Aberdeen, defendant below, appeals from a judgment for the respondents, plaintiffs below.
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. Raymond, 51 Wn.2d 241, 317 P.2d 908; Ewer v. Johnson, 44 Wn.2d 746, 270 P.2d 813; and Morehouse v. Everett, 141 Wn. 399, 252 Pac. 157, 58 A.L.R. 1482, relied upon by the city. The supreme court of Oregon recently commented:
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. App.), 272 S.W. 933.
"... `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
Dean Prosser declares
"... 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 Wn. 305, 197 Pac. 38, we approved this view of the law.
"Appellee is, in effect, driven to the position that, because the blind should do more than the seeing to avoid being injured, the city need not take as much care to protect the blind as to protect those who can see. Some color is given this argument because the courts, in laying down the undoubted proposition that due care was exacted of the blind as well as the seeing, and that ordinary care might require more of the blind than those who had their sight, have failed to make clear that the obligation was correlative
"... `the streets are for the use of the general public, without discrimination; for the weak, the lame, the halt and the blind, as well as for those possessing perfect health, strength and vision;' and the law casts upon one no greater burden of care than upon the other...."
The obligations are correlative. The person under a physical disability is obliged to use the care which a reasonable person under the same or similar disability would exercise under the circumstances. The city, on the other hand, is obliged to afford that degree of protection which would bring to the notice of the person so afflicted the danger to be encountered. There was no error, therefore, in the denial of the appellant's requested instruction No. 13.
The remaining assignment of error has to do with the appellant's request to withdraw from the jury the consideration of the respondent's loss of earnings as an item of damage. Such earnings were proved and there was no error in the ruling.
The judgment is, therefore, affirmed.
WEAVER, C.J., DONWORTH, OTT, and HUNTER, JJ., concur.
"The city's refused instructions J and K sought to submit that the city's duty was to keep its streets reasonably safe for the ordinary and usual mode of travel and that it was not liable for failure to make special provisions required only for the safety of persons traveling with crutches. Under the holding of Bethel v. St. Joseph, 184 Mo. App. 388, Wilkerson v. City of Sedalia, 205 S.W. 877, and Hestand v. Hamlin, 218 Mo. App. 122, all decided by this court, the duty of the city in relation to keeping its sidewalks in repair goes no further than to require it to use ordinary care to keep its streets in reasonably safe condition for travelers passing over them in the ordinary mode, while in the exercise of ordinary care, and the city's instructions should have been given. However, these cases, and others upon which they are founded, have substantially been overruled by the Supreme Court in the cases of Hunt v. St. Louis, 278 Mo. 213, and Hanke v. St. Louis, 272 S.W. 933, the Hanke case having been founded upon the Hunt case...."
"... If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the plaintiff cannot excuse such gross negligence. A drunken man is as much entitled to a safe street, as a sober one, and much more in need of it." Robinson v. Pioche, Bayerque & Co., 5 Cal. 461.