Fraser v. Freedman

Opinion by Porter, J., This is an action for personal injuries to Robert ' T. Fraser, who at the time of the accident wias over fourteen years of age. The boy and his father recovered verdicts in the court below but the court entered judgment in favor of the defendant non obstante veredicto, upon the ground that the boy was guilty of contributory negligence. The plaintiffs have taken these appeals land here assign for error that ruling of the court. We have, therefore, only to consider wheth *456 er the evidence produced by the plaintiffs was such as to require the submission of the case to the jury. The evidence produced by the plaintiffs tended to establish that the boy at the time of the accident was over fourteen years of age and there was nothing in that evidence to indicate that he did not possess the intelligence requisite to enable him to apprehend danger and avoid injury. The defendant kept a cigar store at the corner of 23rd and McKean Sts., in the city of Philadelphia. The entrance to the store was at the corner and there was what the witnesses called a “catereornered” step in front of the doorway. There was, on the McKean St. side of the house, a cellar door surrounded by. a stone coping which at the end nearest the curb was about two and a half inches high and at the side next to the building about five inches high, this extended into the sidewalk the same distance with the step in front of the entrance to the store and the stone coping of the cellar door at the side nearest this step was distant therefrom about a foot and a half. Shortly after five o ’clock on a bright afternoon in July, 1921, some person connected with the defendant’s household came out of the store and opened one of the cellar doors and went down the stairway into the cellar and about five minutes after-wards Robert T. Fraser came out of his home on the opposite side of McKean St. some distance from 23rd St. with the intention of going to the store of the defendant, he walked rapidly across McKean St., diagonally, but instead of reaching the step leading into the store, mistook the direction, tripped over the stone coping and fell through the open door of the cellar and was injured. The plaintiffs’ evidence established that the boy had been blind from birth and could not see the ground or pavement upon which he was walking. There was no evidence indicating that there were any other persons upon the sidewalk or *457 anything to obstruct a full view by the plaintiff of the conditions existing, or anything to interfere with his choosing his own course to reach the entrance to the store. If, in these circumstances, a normal person had thus fallen into the cellar it is manifest that they must have been held guilty of contributory negligence. It is argued by the appellants that this boy cannot be held guilty of contributory negligence because he could not see. The boy was of an age when capacity to apprehend danger is to be presumed, unless evidence of lack of capacity is produced. The law requires a degree of care upon the part of one whose eye-sight 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 eye-sight 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; Karl v. Juniata County, 206 Pa. 633; Flynn v. Railway Co., 234 Pa. 335; Krenn v. Pittsburgh, C., C. & St. L. Ry. Co., 259 Pa. 443; Keith v. Worcester, 196 Mass. 478. The evidence produced by the plaintiffs clearly establish that this boy walked rapidly, in broad daylight, diagonally across McKean *458 St. and the sidewalk on the opposite side of that street and into the cellar door, without taking any precautions whatever, no staff or cane in his hand to warn him into what he was walking, and this when he was totally blind. The court below did not err in holding that his own evidence established his contributory negligence. The assignments of error are dismissed. The judgment is affirmed.