Appeal, No. 98, Jan. T., 1952, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1950, No. 3231, in case of George W. Davis v. Milton Feinstein and Howard Feinstein, trading as Gibson Furniture Company. Judgment affirmed.
Michael A. Foley, for appellants.
Raymond Pace Alexander, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
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 ...