Opinion
Appeal from the Superior Court of the City of San Francisco.
Action for damages sustained by the plaintiff in falling into an uncovered hole, dug in the sidewalk in front of defendants' premises.
The Court below gave the following instructions to the jury:
Third, " If the plaintiff's negligence in any manner contributed to his injury, he cannot recover."
Fourth, " If at the time of the accident the plaintiff was intoxicated from the use of ardent spirits, and that was one of the causes which caused the accident, the plaintiff cannot recover."
Fifth, " Drunkenness at the time of the accident on the part of the plaintiff, is proper for the jury to consider on the subject of negligence on the part of the plaintiff."
The jury found a verdict for the defendants, and plaintiff appealed.
COUNSEL:
Cited Blake v. Feins, 1 Seld. 49; Earles v. Hall, 2 Met. 358, Mayor of New York v. Bailey , 2 Denio, 435, and cases cited.
J. B. Hart, for Appellant.
Cook & Olds, for Respondents.
Drunkenness on the part of the plaintiff, was proper to be considered by the jury, in arriving at thefact as to whether the plaintiff was free from fault. Hartfield v. Roper, 21 Wend. 615. Lane v. Crombie, 12 Pick. 176. Pluckwell v. Wilson, 5 Car. & P. 375. Williams v. Holland, 6 Ibid. 23. Brownell v. Flagler, 5 Hill, 282, and cases cited.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The Court below erred in giving the third, fourth and fifth instructions. 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.
The judgment is reversed, and the cause remanded.