The direction was right; and if there was error, it was on the part of the jury. The principle that there is no *525recourse by action for an injury which is the consequence of negligence on both sides, was laid down by this court in Simpson v. Hand, (6 Whart. 320), which was a case of negligence in the collision of ships. But the law of the particular case was laid down, in this instance, by the court below, in exact conformity to the direction of Mr Justice Alberson in Pluckwell v. Wilson, (5 Car. & P. 379), that a person who leaves the ordinary side of the road is bound to use more care and diligence, and to keep a better look-out to avoid concussion, than would be requisite if he were to confine himself to the proper side. It was for the jury, therefore, to say, under all the circumstances, whether the plaintiff was chargeable with negligence, having left the side-walk, in not looking behind as well as before, to avoid contact with persons riding or driving in the middle of the street. If he was, the defendant would be answerable only for negligence so wanton and gross as to be evidence of voluntary injury.
But the evidence of intoxication ought to have been received; not because the legal consequences of a drunken man’s acts , are different from those of a sober man’s acts, but because where the evidence of negligence is nearly balanced, the fact of drunkenness might turn the scale, inasmuch as a man ¡partially bereft of his faculties would be less observant than if he were sober, and less regardful of the safety of others. For that purpose, but certainly not to inflame the damages, the. evidence ought to have been admitted.
Judgment reversed, and a venire de novo awarded.