Chesapeake & Potomac Telephone Co. v. Lysher , 107 Md. 237 ( 1908 )

The plaintiff is a blind man living at No. 1622 North Bradford street, Baltimore City. He was employed at the Maryland School for the Blind, as a broom-sewer in one of its work shops. He was injured, on the 20th day of January, 1906, while walking on the west side of Bradford street between Federal and Lanvale streets, by falling into a hole, which had been dug in the sidewalk, and left open and unguarded by the defendant corporation.

The declaration states that the defendant is a corporation owning and operating a telephone service in the city of Baltimore and State of Maryland. That on or about the 20th day of January, 1906, the defendant by its servants and agents dug in the sidewalk on the west side of Bradford street between Federal and Lanvale streets a deep hole and left the same open and unguarded, and the plaintiff while walking on Bradford street in the ordinary pursuance of his business fell into the hole dug by the defendant, its servants and agents, and left unprotected and unguarded by them, and by reason of the negligence of the defendant and its servants and agents in charge of the digging of the hole was grievously injured, and the plaintiff used due care but the defendant did not use due care.

The principal question before us is the ruling of the Court upon the prayers, and this will require an examination of the evidence set out in the record.

The plaintiff was the chief witness and testified that he lived with his brother-in-law at 1622 N. Bradford street, that he had been blind for twenty-one years and was employed in the workshop at the Maryland School for the Blind. That he had been connected with the school for twelve years, and he had been employed in the broom shop of the school for four years. That in going from his home on Bradford street to the School for the Blind, which is on the north side of North avenue between Calvert street and Guilford avenue, he walked south on the west side of Bradford street to Federal street and east on the north side of Federal street to the northeast corner of Milton avenue and Federal street, where he boarded a car and rode to Guilford and North avenues. He then left the car and walked across the pavement following the inner curb of the pavement to the steps of the workshop, and that he had been going over the same ground for four years. That he moved along the street by passing his cane over the street in front of him, feeling along with his cane, following the curb-stone as much as he could. He further testified that he was hurt on Saturday, January 20th, 1906. That he went to work that morning and left the shop at five minutes of twelve; that, at the time he fell he was following the curb-stone with his cane in the same way he always did. He fell in the hole as he was walking on the pavement with his stick in his right hand, in the same way he always used it. He was running it along the edge of the curb as he always did and he stepped into the hole. There was nothing around the hole to warn him there was an obstruction. That he was severely hurt about hip, arm and back. There was further testimony to the effect that the hole in which the plaintiff fell had been dug by the agents of the defendant corporation along the footway or pavement of the street for the purpose of planting a telephone pole and the hole was open and unprotected at the time of the accident.

The defendant's prayer, offered at the close of the plaintiff's case, to the effect that the uncontradicted evidence on the part of the plaintiff shows that he failed to use his stick to determine the condition of the pavement in front of him and thereby walked in a hole which he could have discovered by the exercise of proper care on his part and was thereby injured was properly rejected. This proposition upon the evidence was clearly a question for the jury.

At the conclusion of the evidence the plaintiff offered two prayers, both of which were granted and the defendant offered twelve, of which the fifth, sixth, ninth and twelfth were granted and all the others were rejected.

The plaintiff's first and second prayers were properly granted, and have frequently been sustained by this Court in damage cases, where the case is submitted to the jury and need not be discussed here.

The Court committed no error in overruling the special exceptions to these prayers. There was evidence to sustain the propositions asserted by them, if believed by the jury.

It is plainly apparent, we think, that if the rejected prayers of the defendant had been granted by the Court below it would have been a manifest invasion of the province of the jury in determining the question of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff. These were both questions for the consideration of the jury under the facts of the case, and were fully and fairly submitted to the jury under the plaintiff's and defendant's granted prayers. The vital question in the case was whether the plaintiff, a blind man, exercised due care in passing along the sidewalk on the west side of Bradford street on the day of the accident. By the defendant's fifth prayer the question of due care was directly submitted to the jury, to the effect that if the jury believed the accident would not have happened if the plaintiff had used proper care on his part, then the verdict of the jury must be for the defendant.

By its ninth prayer the jury were further told that if they believe that both the plaintiff and defendant were negligent, then their verdict must be for the defendant, as the plaintiff could not recover if his negligence contributed to the accident,

The standard of care sought to be fixed in such cases by the defendant's rejected prayers is not "the ordinary care" sanctioned by the adjudicated cases. Fennemen v. Holden,75 Md. 7.

In Sleeper v. Sandown, 52 N.H. 244, where a blind man, in the day time walked off the side of an unobstructed bridge sixteen feet in width, which was defective for want of a rail and suffered an injury, it was held that the Court could not say, as matter of law, that his fault contributed to the accident; but it was for the jury, after considering his familiarity with the road, his ability arising from the increased acuteness, fidelity and power of his other senses or otherwise, and all the circumstances of the case, to say, whether he was guilty of carelessness in attempting to pass the bridge without a guide.

In Smith v. Wildes, 143 Mass. 556, a somewhat similar case, in a suit against the keeper of a shop for personal injuries occasioned to the plaintiff, a blind man, while walking unattended along a street in a city, by falling into a hole in the sidewalk of a street, it was held that the questions of due care on the part of the plaintiff and negligence on the part of the defendant were for the jury, under the facts of the case.Harris v. Uebelhoer, 75 N.Y. 174; Stewart v. Ripon,38 Wis. 584; The City of Franklin v. Harter, 127 Indiana, 446.

For the reasons stated, it follows there was no error of which the appellant is entitled to complain, in the rulings of the Court upon the prayers, and as the case was properly submitted to the jury, the judgment will be affirmed.

Judgment affirmed, with costs.