DAVIS v. FEINSTEIN, Pa., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Michael A. Foley, for appellants. Raymond Pace Alexander, for appellee.

Judges

OPINION BY MR. JUSTICE ALLEN M. STEARNE, May 26, 1952:

See more information ...

Smart Summary

Factual and Procedural Background

This case arises from a personal injury trespass action brought by George W. Davis against Milton Feinstein and Howard Feinstein, trading as Gibson Furniture Company. Plaintiff, a blind man, fell into an open cellarway in front of the defendants' furniture store located on 60th Street in Philadelphia. The cellarway opening was normally covered by a two-section cellar door, with an iron bar intended to hold the door sections erect and prevent pedestrians from falling in. At the time of the accident, one section of the door was closed and flush with the sidewalk, but the iron bar was absent and the other section was standing erect, leaving an uncovered opening into which the plaintiff fell, sustaining injuries.

The jury returned a verdict for the plaintiff in the amount of $6,000, and judgment was entered accordingly. The defendants appealed, challenging the verdict on the grounds that the plaintiff was contributorily negligent as a matter of law. The Supreme Court of Pennsylvania reviewed the appeal following the judgment of the Court of Common Pleas No. 3 of Philadelphia County.

Legal Issues Presented

Whether the plaintiff, a blind person, was contributorily negligent as a matter of law in failing to discover the open cellarway.
Whether the use of a white cane by the plaintiff constituted due care under the circumstances.
Whether contributory negligence in this context is properly a question for the jury rather than decided as a matter of law.

Arguments of the Parties

Appellants' Arguments

The plaintiff did not properly use his white cane or the cane was inadequate to detect the open cellarway.
Because a person with sight cannot claim ignorance of an open and obvious danger, similarly a blind person must be held to have discovered such an obvious hazard if proper care was exercised.
Therefore, the plaintiff was contributorily negligent as a matter of law, justifying judgment notwithstanding the verdict in favor of defendants.

Appellee's Arguments

The plaintiff employed his white cane in a reasonable manner, moving it laterally to guide himself and tapping ahead to detect obstacles.
The plaintiff’s testimony about his use of the cane was not effectively contradicted by physical facts or defendant’s testimony.
Contributory negligence is a question for the jury when reasonable minds can differ, and here the jury properly found the plaintiff exercised due care.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smith v. Sneller, 345 Pa. 68, 26 A.2d 452	Established that a blind person must use compensatory devices such as a cane or guide dog to exercise due care; failure to do so may constitute negligence.	Distinguished on the facts because plaintiff here did use a cane; court emphasized that use of such aids makes contributory negligence a jury question rather than a matter of law.
Guca v. Pittsburgh Railways Company, 367 Pa. 579, 80 A.2d 779	Contributory negligence may only be declared as a matter of law when it is so clear that reasonable persons cannot differ; also, in reviewing judgment n.o.v., facts and inferences must be viewed most favorably to plaintiff.	Applied to affirm the jury verdict by accepting plaintiff’s testimony and concluding contributory negligence was not so clear as to warrant judgment as a matter of law.

Court's Reasoning and Analysis

The court acknowledged that the defendants conceded sufficient evidence of their negligence existed to submit the case to the jury. The defendants' motion for judgment notwithstanding the verdict rested solely on the argument that the plaintiff was contributorily negligent as a matter of law. The court analyzed the plaintiff’s testimony describing his use of a white cane, which he moved laterally to keep a straight path and tapped ahead to detect obstacles. The court emphasized that a blind person is not required to discover every danger that a person with normal vision would, but must exercise due care by making reasonable efforts to compensate for blindness using aids such as a cane.

The court distinguished the precedent Smith v. Sneller because, unlike the plaintiff in that case who did not use any compensatory aid, the plaintiff here used a cane. This made the question of contributory negligence one for the jury rather than a legal conclusion. The court reiterated the principle that contributory negligence can only be decided as a matter of law when it is so clear that no reasonable persons could disagree. Given the plaintiff’s testimony and the lack of physical evidence disproving it, the court found it reasonable for the jury to conclude the plaintiff exercised due care.

Holding and Implications

The court affirmed the judgment entered on the jury's verdict in favor of the plaintiff.

The direct effect of this decision is to uphold the jury's determination that the plaintiff was not contributorily negligent as a matter of law, allowing the personal injury judgment to stand. The court did not establish new precedent but clarified that in cases involving blind plaintiffs using compensatory aids, contributory negligence is generally a factual question for the jury rather than a legal conclusion.

Show full summary ...

Da v. s

Negligence — Contributory negligence — Reasonable care — Blind person — Failure to discover danger.

1. A blind person is not under a duty to discover everything containing peril which a person of normal vision would; he is required to use due care under the circumstances. [451-2]

2. Due care for a blind man includes a reasonable effort to compensate for his affliction by the use of artificial aids for discerning obstacles in his path; when an effort in this direction is made, it will ordinarily be a jury question whether or not such effort was a reasonable one. [452]

3. Contributory negligence may be declared as a matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree as to its existence. [452]

4. Smith v. Sneller, 345 Pa. 68, distinguished. [451]

Appeals — Review — Judgment n.o.v.

5. In determining whether judgment non obstante veredicto should be entered for the defendant, the facts and all reasonable inferences to be deduced therefrom must be considered most favorably to the plaintiff. [450-1]

OPINION BY MR. JUSTICE ALLEN M. STEARNE, May 26, 1952:

This is an appeal from judgment entered on a jury's verdict for plaintiff in an action of trespass. Defendants concede that there was sufficient evidence of negligence to submit the case to the jury but rest their motion for judgment non obstante veredicto on the sole ground that plaintiff was guilty of contributory negligence as matter of law. We agree with the learned court below that a jury question was presented.

Plaintiff is a blind man. While walking south on 60th Street between Market and Arch Streets in Philadelphia, he fell into an open cellarway in front of the furniture store maintained by defendants. The opening was equipped with a cellar door, flush with the pavement when closed, and consisting of two sections each about two and one-half feet wide. When the door was open, an iron bar about five feet in length usually connected the two sections at the front, holding them erect and thus presenting a barrier which would ordinarily prevent a pedestrian from stepping into the opening. At the time of the accident, the north section was closed and even with the sidewalk; the connecting bar was not in place; and the south section of the door was standing erect. It was into the aperture thus left uncovered that the plaintiff fell and suffered the injuries which were the basis of this suit. Defendant introduced testimony to contradict the plaintiff's testimony that one door was closed at the time of the accident. We must, however, accept plaintiff's version under the familiar rule that in considering defendants' motion for judgment n.o.v. all reasonable inferences from the testimony must be taken most favorably to plaintiff: Guca v. Pittsburgh Railways Company, 367 Pa. 579, 581, 80 A.2d 779.

Plaintiff further testified that on the morning of the accident he carried a white cane customarily employed by blind persons. He described his use of it as follows: "A. As I walked down, I touched this way to guide myself to see if I am walking straight. I had the cane in front of me. I touched over here to see if I went from one side to the other. Q. You are referring to the fact that you moved your cane to the right? A. Yes. Q. What did you do with respect to your front distance? A. I put it up at least two or three feet like that and as I step, I put it two steps ahead as I step one step. Q. In front of you? A. Yes."

Both sides agree with the statement of the learned court below that the controlling authority is Smith v. Sneller, 345 Pa. 68, 26 A.2d 452. In that case the blind plaintiff employed no cane or other compensatory aid. Speaking through Mr. Chief Justice DREW (then Justice) we said (p. 72): "While it is not negligence per se for a blind person to go unattended upon the sidewalk of a city, he does so at great risk and must always have in mind his own unfortunate disadvantage and do what a reasonably prudent person in his situation would do to ward off danger and prevent an accident. The fact that plaintiff did not anticipate the existence of the ditch across the sidewalk, in itself, does not charge him with negligence. But, it is common knowledge, chargeable to plaintiff, that obstructions and defects are not uncommon in the sidewalks of a city, any one of which may be a source of injury to the blind. Plaintiff's vision was so defective that he could not see a dangerous condition immediately in front of him. In such circumstances he was bound to take precautions which one not so afflicted need not take. In the exercise of due care for his own safety it was his duty to use one of the common, well-known compensatory devices for the blind, such as a cane, a 'seeing-eye' dog, or a companion."

In the instant case plaintiff testified that he was employing his cane as a guide, moving it laterally in order to touch the walls of abutting buildings and keep on a straight course, and also tapping the ground before him to search out obstacles in his path. Defense counsel argues: "Even as a man with sight cannot say he did not observe that which was open and obvious, neither can a blind man say that he made proper use of the cane and was unable to learn of the existence of the defect. It necessarily follows that he did not have a proper instrument, that is to say, the cane was not adequate or he did not use it properly."

We did not so decide in Smith v. Sneller, supra. A blind person is not bound to discover everything which a person of normal vision would. He is bound to use due care under the circumstances. Due care for a blind man includes a reasonable effort to compensate for his unfortunate affliction by the use of artificial aids for discerning obstacles in his path. When an effort in this direction is made, it will ordinarily be a jury question whether or not such effort was a reasonable one. The general rule applies that "Contributory negligence may be declared as a matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree as to its existence. . .": Guca v. Pittsburgh Railways Company, 367 Pa. 579, 583, 80 A.2d 779.

It was not unreasonable for the jury to have concluded that plaintiff exercised due care for his safety when he used his cane in the manner which he described. The uncontroverted physical facts did not effectively disprove plaintiff's testimony,

Judgment affirmed.

DAVIS v. FEINSTEIN