Smith v. Wildes

C. Allen, J. The defendants caused a trap-door to be opened, leaving a hole in the sidewalk of a much frequented street, and put up no rail, rope, or other barrier to keep persons from walking into the hole, and had nobody there whose special business it was to look out for and warn persons who might be approaching. Those who were at work there were there for the purpose of doing the work, and not for the purpose of warning passers by. Under such circumstances, the question of the defendants’ negligence must be left to the jury. Nor can we say, as matter of law, that .there was such negligence on the part of the plaintiff as to prevent his recovery. He was forty-nine years old, apparently intelligent, used to going about alone, well acquainted with this particular locality, and he had a right to rely to some extent upon the supposition that pitfalls would not be left unguarded in the sidewalk. It cannot be laid down, as a universal rule, that it is negligence for a blind man to walk the streets of Boston unattended. Indeed, so broad a proposition as this is not contended for by the defendants. Under all the circumstances disclosed in the present case, 560 it was proper to leave the question whether the plaintiff was negligent or not to the jury. Davenport v. Ruckman, 87 N. Y. 568. Harris v. Uebelhoer, 75 N. Y. 169. Sleeper v. Sandown, 52 N. H. 244. The instructions given to the jury are not reported, and it is to be presumed that they were proper. Exceptions overruled.