Coombs v. Purrington

Appleton, J. The requested instructions amount to this; that being in the streets where there is a sidewalk, “ would [335] be such a want of care as would preclude the plaintiff from recovering.” This request was properly refused. Whether there is negligence or not, must, in each case, be determined by the peculiar and attendant circumstances. Whether there was any negligence on the part of the plaintiff, was a fact for the consideration of the jury, and was submitted to the jury under proper instructions. Bigelow v. Rutland, 4 Cush. 247; Garmon v. Bangor, 38 Maine, 443. The Court further instructed the jury, “that a person had a right to be in the street, whether there is a sidewalk or not, and that such fact is not evidence from which the jury can legally infer negligence.” This instruction was given at the instance of the counsel for the plaintiff, and rests upon the isolated fact, of being in the street where there is likewise a sidewalk. But from that fact alone negligence could not be legally inferred. If such were the legal inference, then being in the streets must be regarded as a fact per se proving negligence. Now the public street is a place in which all have a right to be, for streets are for the purposes of public travel. It was held in Boss v. Litton, 5 C. & P., 379, that a foot passenger, though he may be infirm from disease, has a right to walk in the carriage-way, and is entitled to the exercise of reasonable care on the part of persons driving carriages along it. “A man,” says Denman, C. J., “in that case, has a right to walk in the road, if he pleases. But he had better not, especially at night, when carriages are passing.” The general right of foot passengers, in reference to carriages, to use the carriage-way, was fully recognized in Raymond v. Lowell, 6 Cush. 530. It would be a novel doctrine to hold that foot passengers have no right to walk in the street, or, that walking therein, was prima facie evidence of want of ordinary care, or that from that fact alone negligence might be inferred. The jury were instructed, “that the plaintiff and the defendant had an equal right to bo in the street, and they would determine whether there was want of ordinary care on the part of the plaintiff; and if there was, she would not be cn [336] titled to recover.” The question of ordinary care was thus submitted to the jury, and it was for them to determine, from all the circumstances in the case, whether or not the female plaintiff was chargable with negligence in having left the sidewalk as she did; if not so chargable, whether the injury arose from the negligence of the defendant. The verdict has determined those facts, and they are not examinable here. It is well settled, that when the injury is in consequence of negligence on both sides, that no action can be maintained. Simpson v. Hand, 6 Whar. 320; Williams v. Holland, 6 C. & P., 23; Parker v. Adams, 12 Met. 415. Exceptions overruled. — Judgment on the verdict. Tenney, C. J./and Rice and May, J. J., concurred.