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Issue 6 LOST DISABILITY CLASSICS In 1870, David Sleeper, a blind man, was walking to his job as a farmhand in the small New Hampshire town of Sandown. He crossed a bridge which he was accustomed to crossing, using the railing as a guide. However, on this day, the railing was broken, and he fell into the river below. He sued the town, saying that they had been negligent in not keeping the bridge in good repair. The town responded by saying that it was negligent for a blind man to be traveling about on his own. He won the case, which the town then appealed to the New Hampshire Supreme Court. The case was again decided in Sleeper's favor. Our lost classic this month is an excerpt from the New Hampshire Supreme Court's decision -- not only an early affirmation of disabled people's rights, but also a fascinating glimpse of the life of a blind man of that era. I should mention that I first read of this case in a handbook the ACLU published in 1979 called "The Rights of Physically Handicapped People." They, in turn, learned of it from Professor Jacobus ten Broek's work. -- Anne Finger, Fiction and Poetry Editor |
From
Ordinary care is such care as is usually exercised under like circumstances by persons of average prudence. Whether it is want of ordinary care for a blind man to travel upon the highway on foot, unattended, is a question of fact to be determined by the jury in view of the circumstances of each individual case. Where a blind man in the daytime, walked off the side of an unobstructed bridge sixteen feet in width, which was defective for want of a rail, and suffered an injury which would not have happened but for his blindness, the court cannot say, as a matter of law, that his fault contributed to the accident; but it is 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. CASE, by David Sleeper against the town of Sandown, for injuries to the person of the plaintiff, caused by a defect in a highway which the defendants were bound to keep in repair. The testimony of the plaintiff himself endeavored to prove that he was totally blind, and had been for several years; and that since he became so he had been accustomed to walk across this bridge, often alone; sometimes ten times in one week, in going from his place, which was one mile and a half from this bridge, to and from his work. He testified that when he crossed it he always felt his way with his cane very carefully, and sometimes ran against the railing; that on August 4, 1870, he was crossing it on foot, in the daytime, feeling his way along as he always did, and the first he knew he stepped off and fell, striking his feet into the edge of the water, having got two thirds or three fourths of the way across. He said he did not stub his toe, but just walked right off. The plaintiffs evidence tended to prove that after he became blind he was accustomed to do many kinds of farm work, such as chopping wood, felling trees, mowing, reaping, threshing grain, digging potatoes, planting and hoeing, although with difficulty the first time hoeing corn, and that at these various kinds of work he was a good man to hire, and was accustomed to travel the roads on foot and alone a good deal. Marston, for the defendants. The defendants maintain, -- (1) That towns are only required to keep highways reasonably safe for persons having such use of the senses common to all men as will enable them to observe and avoid manifest defects in the daytime. One having the sense of sight, and failing to use it, and thereby receiving an injury, would be held wanting in ordinary care; and he is equally wanting in ordinary care who, without sight, precipitates himself upon an obstruction which the sense of sight would have enabled him to avoid. (2) That totally blind men are required to exercise a higher degree of diligence to avoid injuries than those having the sense of sight: that is, the sense of sight wanting, other senses must be employed with more care than is required of those possessed of all the senses, otherwise the care and diligence of ordinary men would not be exercised. Hatch and Stickney, for the plaintiff. (I) The first proposition of the defendants would preclude the plaintiff from his action, because he was blind, and might have avoided injury if he had been able to see. . . . Persons who have encountered in the darkness of night defects in a highway, with which they were familiar and which they might have easily avoided in the daytime, have often been holden entitled to recover. . . . Indeed, it has been repeatedly holden that persons blind, or of defective (II) We deny that a blind man is required to exercise any higher degree of diligence to avoid injuries than persons who can see. It may be true that blind men, traveling upon the highways, are bound to use their remaining senses more carefully than seeing men would need to do. This only requires of them ordinary care -- such care as men ordinarily use for their own safety. It would be absurd to require of all persons one ordinary degree or standard of care, to be exercised in the same manner and by all the same senses. Highways are intended for the use of all persons -- women and children, persons of weak minds or defective senses, persons preoccupied by business, affliction, curiosity, and the like: all these have the same necessity as others to use the highways, and roads must be made reasonably safe for their acomodation, they using, on the whole, ordinary care. We think they are bound to use only such care as they are capable of. A different rule would substantially exclude these classes of persons from passing. (III) The questions, whether the plaintiff was a fit man to travel alone in the highway, and whether he in fact used proper care, were for the jury. . . . The capacity of he plaintiff, as well as the care he used, was much debated at the trial. He was shown to be able to chop wood, fell trees, mow, reap, thresh grain, plant, hoe corn, dig potatoes etc., so well, that he was "a good man to hire"; and it appeared that he was accustomed to travel the roads on foot; that he recognized the approach of travellers, etc. . . . . It appeared that he had often crossed the bridge alone before the accident, and when he crossed it he always felt his way along with his cane very carefully, and sometimes ran against the railing; and at the time of the acccident he was crossing it in daytime, "feeling his way along as he always did," and the first he knew he fell off. It would seem that he exercised all the care that he was capable of, or that could be reasonably required of him. It would be unreasonable to require him to take some one with him every time he had occasion to travel upon the highways, or to inquire and ascertain whether any dangerous places had been made in the highways or bridges since he last travelled over them; he had a right to presume that the town had done its duty in that respect, and had kept the highways and bridges in a reasonably safe condition for him and all others who had occasion to travel upon them. It cannot be imputed to him as negligence, or want of ordinary care, that he failed to take some one with him, or to make such inquiries on such occasions. "The blind," says HUNT, C.J., in Davenport v. Rushman, "have all means of protection" and "sources of knowledge of which all are not aware." It is impossible to aver that the total amount of care used by the plaintiff in traveling along the highway, aided by his quickened sense of feeling and hearing, was not equal to the care that men in general ordinarily use, -- for persons who see do not always perceive; their attention may be diverted and their sight may be turned from the danger they are approaching, and yet they may be guilty of no negligence which will prevent their recovering for injuries like that which the plaintiff suffers. The plaintiff certainly used more care than ordinary men could use in the night, and it is immaterial whether the accident happened for want of light or want of sight. It is wholly the fault of the town in either case. LADD, J. . . . Blindness of itself is not negligence. Nor can passing upon the highway, with the sight of external things cut off by physical incapacity of vision in the traveller, be negligence, in and of itself, any more than passing upon the highway when the same things are wholly obscured by the darkness of night. In either case, it seems plain to us that there are other elements which must be taken into account. Although blindness in itself is not negligence, still, in judging of the conduct of a blind man, his unfortunate disability must be considered, and he must doubtless be held to govern his conduct with a reasonable regard to his situation in that respect. Many acts, which would show no want of care on the part of one possessed of vision, would be evidence of the grossest carelessness when attempted by one without it. For example: if a blind man should knowingly place himself upon the brink of a precipice, and then undertake to move about with no one to guide his steps or warn him of danger, and in doing so should meet with a fall and be injured, no one would doubt but that his fall was the consequence of his own carelessness and folly. But, on the other hand, suppose he were walking on his own grounds, along a pathway with every step of which he was perfectly familiar from long and constant use, and in doing this should fall into a pit that had been wrongfully dug there only over night, without his knowledge, and under such circumstances that he was in no fault for not knowing its existence, with what show of reason could it be contended that the accident was chargeable to his want of care?. . . Blindness is no more negligence than near-sightedness, and probably no more likely, on the whole, to contribute to an accident; and whether any one of the senses be wholly obliterated, or only obscured and partially destroyed, cannot, as we see, make any difference with the application of the rule. Assuming, then, that the plaintiff in this case might, with a reasonable assurance of safety, undertake to cross this bridge, so that he was in no fault for being there, and that the accident was the combined result of his blindness and the want of a rail which the town ought to have supplied, it follows that his fault did not contribute, and he is entitled to recover. An examination of the case shows that the trial proceeded and the cause was submitted to the jury in accordance with these views. All the evidence tending to show the extraordinary ability of the plaintiff after he became blind, in executing various kinds of work, &c., was clearly admitted upon the question whether it was a reasonably prudent act for him to attempt to pass the bridge; and the court expressly charged the jury that the question was, whether he was in exercise of ordinary care and prudence in passing, under the circumstances. This disposes of all the questions in the case except the fourth request for instructions, which was as follows: "That want of due care is negligence, and due care is the highest care which men of ordinary prudence would exercise in the same situation." This, we think, would be putting a strain upon the definition which it will not fairly bear, and which would be likely to prejudice the plaintiff. Ordinary care may be well enough defined as such care as is usually exercised under like circumstances by persons of average prudence‹such care as people in general are accustomed to exercise. Our conclusion is, that the exceptions must be overruled, and there must be Judgment on the verdict.
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