Cook v. City of Winston-Salem

85 S.E.2d 696 (1955) 241 N.C. 422 R. W. COOK v. CITY OF WINSTON-SALEM and Sherrill Paving Company. No. 743. Supreme Court of North Carolina. February 4, 1955. *699 Deal, Hutchins & Minor, Winston-Salem, for plaintiff-appellant. Womble, Carlyle, Martin & Sandridge, Winston-Salem, for defendant-appellee City of Winston-Salem. Jordan & Wright and Perry C. Henson, Greensboro, for defendant-appellee Sherrill Paving Co. PARKER, Justice. The law in respect to liability for injury to a pedestrian due to condition of street as affected by his blindness or other physical disability is clearly stated in 141 A.L.R. Annotation II, pp. 721-722: "It is the general rule that those charged with duties respecting the condition of public ways open to pedestrians must exercise due and reasonable care to keep them reasonably safe for travel by the public, including those who are blind or suffer from defective vision or other physical infirmity, disability, or handicap, and are themselves exercising due care, under the circumstances, for their own safety. While a city or other authority or person owes no more than due, ordinary, or reasonable care toward a blind or other physically afflicted or handicapped pedestrian, *700 in respect of the condition of walkways, the effect of the affliction or handicap may be considered in determining whether the required degree of care has been exercised, which seems a natural conclusion from the premise that such persons have as much right to use such ways as those physically sound, and in harmony with the proposition that the physical condition of the person injured is a proper matter for consideration in determining whether or not he has exercised the degree of care imposed upon him by law, as regards freedom from contributory negligence." Cases from many jurisdictions are cited in support. The Sherrill Paving Company had not completed its work on Peachtree Street, because the top surfacing had not been put on. The Sherrill Paving Company, having entered into a contract with the City of Winston-Salem to pave Peachtree Street, "was under substantially the same legal duty to the travelling public" as the City of Winston-Salem. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Broadaway v. King-Hunter, Inc., 236 N.C. 673, 73 S.E.2d 861. Neither the City of Winston-Salem, nor the Sherrill Paving Company, was an insurer of the safety of travellers, whether blind, or physically handicapped, or not, using the path on the south side of Marne Street. Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379; Broadaway v. King-Hunter, Inc., supra; Annotation 141 A.L.R. pp. 721-722. The descent or drop or slope of the patch on the south side of Marne Street, where it intersected Peachtree Street, was plainly visible in the daytime. The paving on Peachtree Street was not completed, though it had been stopped for a number of months because of a dispute over curbing. It would seem that it was not the duty of the defendants, in the exercise of reasonable diligence, and in order to keep the street in a reasonably safe condition, to place a signal or guard at the descent or drop or slope during the daytime, when it was plainly visible. City of Rock Island v. Gingles, 217 Ill. 185, 75 N.E. 468; Presley v. C. M. Allen & Co., supra; 63 C.J.S., Municipal Corporations, § 821, p. 158. Plaintiff's allegations of negligence are: the top of the bank had crumbled, leaving loose dirt thereon, which had become pulverized and slick; that no warning signals or barricades were there to give notice of danger; and that the bank had been cut down almost straight instead of cutting it with a gradual slope. The entire condition of the top of this bank and the way it had been cut down, as alleged by plaintiff, was clearly obvious and visible in the daytime. It would appear that plaintiff's evidence fails to show any failure on the part of the defendants to exercise reasonable diligence to keep the end of this path at Peachtree Street in a reasonably safe condition for pedestrians, blind or otherwise, using this path in the daytime, because a person with sight could see its condition, and because as to a blind person "ordinary care on his part meant a higher degree of care than would be required of a person in the possession of all his senses", Foy v. City of Winston, 126 N.C. 381, 35 S.E. 609, 610. But if we concede, which we do not, that the evidence made out a case of negligence against the defendants, nevertheless, it is manifest from plaintiff's evidence that he, although blind and using a "seeing-eye" dog, failed to exercise due care for his own safety, which was a proximate contributing cause of his injuries. It is undoubted law that the blind, the halt, and the lame have as much right to use public ways open to pedestrians as those physically sound. Weinstein v. Wheeler, 127 Or. 406, 411, 257 P. 20, 271 P. 733, 62 A.L.R. 574; Annotation 141 A.L.R. p. 721. See also Foy v. City of Winston, supra. It seems to be the general rule that a blind, or otherwise handicapped person, in using the public ways, must exercise for his own safety due care, or care commensurate with the known or reasonably foreseeable dangers. Due care is such care *701 as an ordinarily prudent person with the same disability would exercise under the same or similar circumstances. Keith v. Worcester & B. V. Street R. Co., 196 Mass. 478, 82 N.E. 680, 14 L.R.A.,N.S. 648; Jones v. Bayley, 49 Cal.App.2d 647, 122 P.2d 293; Annotation 21 L.R.A.,N.S., p. 627 et seq.; Muse v. Page, 125 Conn. 219, 4 A.2d 329; Gill v. Sable Hide & Fur Co., 223 Ky. 679, 4 S.W.2d 676; 65 C.J.S., Negligence, § 142; Annotation 62 A.L.R. p. 580 et seq.; Annotation 147 A.L.R. p. 724 et seq. In respect to the care required of a blind person for his own safety we approved this instruction to the jury by the trial judge in Foy v. City of Winston, supra: "That being blind did not relieve him from exercising ordinary care in passing along the sidewalk, and that ordinary care on his part meant a higher degree of care than would be required of a person in the possession of all his senses." In Fann v. North Carolina R. Co., 155 N.C. 136, 71 S.E. 81, 84, the jury found the plaintiff guilty of contributory negligence. The plaintiff was deaf. This Court said: "The fact that he was deaf should have quickened his obligation to look more carefully, as held in Foy v. [City of] Winston, 126 N.C. 381, 35 S.E. 609." In Keith v. Worcester & B. V. Street R. Co., supra, [196 Mass. 478, 82 N.E. 681], it is said: "But it is also correct to say that in the exercise of common prudence one of defective eyesight must usually as matter of general knowledge take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions than the same person with good eyesight, in order to reach the standard of excellence established by the law for all persons alike, whether they be weak or strong, sound or deficient." In Smith v. Sneller, 345 Pa. 68, 26 A.2d 452, 453, 141 A.L.R. 718, the Court quoted with approval from Fraser v. Freedman, 87 Pa.Super. 454 (a case in which recovery was denied a blind man who fell into an open cellarway extending into the sidewalk) as follows: "`The law requires a degree of care upon the part of one whose eyesight is impaired proportioned to the degree of his impairment of vision. He is bound to use the care which would be exercised by an ordinary prudent person, and in passing upon the question of his negligence due consideration should be given to blindness or other infirmities. In the exercise of common prudence one of defective eyesight must usually, as a matter of general knowledge, take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions; in order to reach the standard established by law for all persons alike, whether they be sound or deficient. The statement that a blind or deaf man is bound to a higher degree of caution than a normal person does not mean that there is imposed upon him a higher standard of duty, but rather that in order to measure up to the ordinary standard he must the more vigilantly exercise caution through other senses and other means, in order to compensate for the loss or impairment of those senses in which he is defective;'" citing many authorities. The Court then says: "We cannot escape the conclusion of the Superior Court that the instant case is ruled by the Fraser case. 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 plaintiff knew that construction work was being done on Peachtree Street. He knew on the day he fell that the curbing had not been put in. The principle "that ordinarily one may assume the public streets to be in a reasonably safe condition" has no application here. Beaver v. Town of China Grove, 222 N.C. 234, 22 S.E.2d 434, 436. "No one needs notice of what he already knows." Lane v. City of Lewiston, 91 Me. 292, 39 A. 999, 1000. In Dunnevant v. Southern R. Co., 167 N.C. 232, 83 S.E. 347, 348, the Court said: "And where a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his *702 recovery." This statement has been quoted with approval in the recent case of Gordon v. Sprott, 231 N.C. 472, 57 S.E.2d 785. It is our duty now to apply the law to the facts here. The plaintiff knew that construction work had been in progress on Peachtree Street, and knew that it was not finished, because he testified, "I knew that the curbing was to be put in." On direct examination plaintiff said: "* * * when they were working on the street, I wouldn't go down in that section until I thought it was finished, or heard it was finished." On cross-examination he said: "I had passed along Peachtree Street several times in a car, and then when they turned traffic on a street, I presumed that the street was finished; so that the first time after that that I went down there walking." He said further on cross-examination: "Automobiles were travelling up and down Peachtree Street when I went over there. I don't know as I asked anybody anything about the street. I didn't make any inquiry to find out what the condition of Peachtree Street was. When I travel over a street in an automobile back and forth a dozen times, I assume that the street is finished." The plaintiff had no right to presume or assume the path was in a reasonably safe condition as it entered Peachtree Street, for he knew the curbing was still to be put in, and he knew that in entering Peachtree Street he would have to cross where the curbing would be. The fact that automobiles were travelling on Peachtree Street was no assurance that the place where the curbing was to be put was in a reasonably safe condition for use of pedestrians. And yet, plaintiff knowing that the construction work as to curbing on Peachtree Street was not finished, and knowing that it was dangerous to him in his condition to go there, for he remained away from that section until, as he testified, he assumed the work was finished because of automobile traffic, voluntarily went there into a place of danger, and on a Sunday morning about 10:00 a. m., with the sun shining, at the place where the path on the south side of Marne Street entered Peachtree Street fell down a descent or drop or slope of about 2 feet, which was plainly and clearly obvious. If plaintiff had had normal sight, he would undoubtedly be barred of recovery by reason of contributory negligence. Burns v. City of Charlotte, 210 N.C. 48, 185 S.E. 443; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571; Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Walker v. Town of Wilson, 222 N.C. 66, 21 S.E.2d 817; Welling v. City of Charlotte, supra. Plaintiff's evidence compels the conclusion that he, a blind man, failed to put forth a greater degree of effort than one not acting under any disabilities to attain due care for his own safety: that standard of care which the law has established for everybody. Foy v. City of Winston, supra. Such a failure to exercise due care for his own safety was a proximate contributing cause of his injuries. We have examined the cases relied upon by plaintiff, and they are distinguishable. What Stacy, C. J., said in Houston v. City of Monroe, supra [213 N.C. 788, 197 S.E. 572], is applicable here: "In the circumstances thus disclosed by the record, we are constrained to hold that the demurrer to the evidence should have been sustained, if not upon the principal question of liability, then upon the ground of contributory negligence." The judgment of nonsuit below is Affirmed. BOBBITT, Justice (concurring in result). I agree that the facts shown are insufficient to constitute actionable negligence. For this reason, I concur in the result. Decision does not require that we determine whether the plaintiff was contributorily negligent as a matter of law. If such determination were required, the issue of contributory negligence, in my opinion, would be for the jury under instructions embodying the principles set forth in the *703 Court's opinion. The contributory negligence issue was submitted to the jury in Foy v. City of Winston, 126 N.C. 381, 35 S.E. 609, and in Fann v. North Carolina R. Co., 155 N.C. 136, 71 S.E. 81. JOHNSON, Justice (concurring). I concur in the result reached in the majority opinion on the single ground that the plaintiff's evidence is insufficient to make out a case of actionable negligence against the defendants, and if this be so, I see no reason for a discussion of the question of contributory negligence. WINBORNE, J., joins in this concurring opinion.