Davis v. Feinstein

Supreme Court of Pennsylvania · 1952 · Torts

TortsContributory NegligenceNegligenceBlind Pedestrianscontributory negligenceblind plaintiffdue carereasonable care under the circumstances

Facts

Plaintiff, a blind man, was walking south on 60th Street in Philadelphia when he fell into an open cellarway in front of defendants' furniture store. According to plaintiff's evidence, one section of the cellar door was closed and level with the sidewalk, the connecting iron bar that usually formed a barrier was not in place, and the other section stood erect, leaving an uncovered aperture into which he fell. Plaintiff testified that he was using a white cane customarily employed by blind persons, moving it laterally to guide himself and tapping the ground two or three feet ahead to detect obstacles. Defendants conceded sufficient evidence of their negligence and argued only that plaintiff's own conduct constituted contributory negligence as a matter of law.

Issue

Whether a blind plaintiff who was using a white cane to guide himself and probe ahead was contributorily negligent as a matter of law when he fell into an open cellarway. More specifically, the question was whether his use of the cane was so inadequate that no reasonable jury could find he exercised due care.

Rule

A blind person is not negligent per se for walking unattended on a city sidewalk, but must exercise due care under the circumstances by making a reasonable effort to compensate for blindness through common artificial aids such as a cane, a seeing-eye dog, or a companion. A blind person is not bound to discover everything a person of normal vision would discover, and once some compensatory effort is made, whether that effort was reasonable will ordinarily be for the jury. Contributory negligence may be declared as a matter of law only when it is so clearly shown that fair and reasonable persons cannot disagree as to its existence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, Nolan Price, who is blind, walked alone along a downtown sidewalk using a white cane. He swept the cane side to side and extended it several feet ahead as he walked, but he still stepped into an uncovered utility pit left open by Granite Street Markets.

If Granite Street Markets moves for judgment notwithstanding the verdict solely on the ground that Nolan was contributorily negligent as a matter of law, how should the court rule?

Explanation. A blind person is not negligent per se for walking unattended, but must make a reasonable effort to compensate for blindness through a common aid such as a cane. Once such an effort is shown, whether it was reasonable is ordinarily for the jury. Contributory negligence may be declared as a matter of law only when fair and reasonable persons could not disagree. Here, Nolan's testimony about sweeping and probing with the cane is enough to prevent judgment n.o.v. on contributory negligence.