[Blindtlk] Reference needed

[Gary Wunder]

Try this, though it has a few OCR mistakes. I just love the disclaimer at
the bbottom of page 1.

The Right to Live in the World: The Disabled in the Law of Tortst

Jacobus tenBroek*



Movement, we are told, is a law of animal life. As to man, in any event,
nothing could be more essential to personality, social existence, economic
opportunity—in short, to individual well-being and integration into the life
of the community—than the physical capacity, the public approval, and the
legal right to be abroad in the land.
Almost by definition, physical disability in many of its forms entails
difficulties in getting about, and this is so quite regardless of the
particular surroundings. Such is the case of the cripple, the paraplegic,
and the legless. The word "halt" itself is a description of disability in
terms of limitation on mobility. Some difficulties in getting about arise
out of the conditions of the modern world in combination with the particular
disability, as in the case of the deaf person in traffic. However different
from what they are widely supposed to be, there are travel problems inherent
in blindness and these are to some extent increased, to some extent
diminished, by the structures and conditions of modern urban

t Author's Note: If the blind appear in these pages more than other
disabled, it may be because the author is blind and has a special interest
in his kind. He thinks not, however. The fact is that the blind individually
and collectively are a very active group of the disabled, if not the most
active. If the National Federation of the Blind appears in these pages more
often than other organizations and agencies composed of the blind or dealing
with their problems, it may be because the author founded that organization
in 1940, served as its president for 21 years, and is still an active leader
in it. He thinks not, however. The National Federation of the Blind is an
aggressive, militant, activist organization of the blind themselves which in
a quarter of a century has achieved a great deal, legislatively and
otherwise, and has always been in the thick of the fight. If the Braille
Monitor is cited more often than other magazines, it may be because the
author is editor of that journal. He thinks not, however. That journal
specializes in information and coverage which have a special relevance to
the issues here discussed.
This article is amply flecked with footnotes, citing a wide range of formal
materials. The views expressed, the author believes, are verified by his
personal experience as a disabled individual far more than by all the
footnote references put together.
The author wishes to acknowledge his indebtedness to the following persons
for their services as research assistants: Fay Stender, Robert Piatt, Gary
Shelton, Warren Deras, Barry McGough, Ken Cloke and Charles Miller; and to
the Institute of Social Sciences of the University of California, Berkeley
and the National Federation of the Blind for making these services
available.
*A.B. 1934, MA. 1935, LL.B. 1938, J.SX>. 1940, University of California,
Berkeley; S.J.D. 1947, Harvard University; DXit. 1956, Findley College;
LLJD., 1964, Parsons College. Member 1950-63, Chairman 1960-63, California
State Social Welfare Board. Professor of Political Science, University of
California.

841






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life and activities. In its 1962 survey of the characteristics of those
receiving federal-state aid to the permanently and totally disabled, the
Department of Health, Education and Welfare concluded that twenty- nine per
cent are confined to the home because of physical or mental conditions, a
conclusion apparently based on the responses of the recipients themselves
rather than on medical evidence of physical capacity.1 Of the roughly 85,000
aid-to-the-blind recipients, presumably the least active segment of the
blind population, only 15.9 per cent are so confined.2
The actual physical limitations resulting from the disability more often
than not play little role in deterrnining whether the physically disabled
are allowed to move about and be in public places. Rather, that judgment for
the most part results from a variety of considerations related to public
attitudes, attitudes which not infrequently are quite erroneous and
misconceived. These include public imaginings about what the inherent
physical limitations must be; public solicitude about the safety to be
achieved by keeping the disabled out of harm's way; public feelings of
protective care and custodial security; public doubts about why the disabled
should want to be abroad anyway; and public aversion to the sight of them
and the conspicuous reminder of their plight. For our purposes, there is no
reason to judge these attitudes as to whether they do credit or discredit to
the hitman head and heart. Our concern is with their existence and their
consequences.
To what extent do the legal right, the public approval, and the physical
capacity coincide? Does the law assure the physically disabled, to the
degree that they are physically able to take advantage of it, the right to
leave their institutions, asylums, and the houses of their relatives? Once
they emerge, must they remain on the front porch, or do they have the right
to be in public places, to go about in the streets, sidewalks, roads and
highways, to ride upon trains, buses, airplanes, and taxi cabs, and to enter
and to receive goods and services in hotels, restaurants, and other places
of public accommodation? If so, under what conditions? What are the
standards of care and conduct, of risk and liability, to which they are held
and to which others are held with respect to them? Are the standards the
same for them as for the able-bodied? Are there legal as well as physical
adaptations; and to what extent and in what ways are these tied to concepts
of custodialism or integrationism?

1U.S. Dep't of Health, Educ. & Welfare State Letter No. 747, Table 27, July
2, 1964.
2TLS. Dep't of Health, Educ. & Welfare, State Letter No. 746, Table 32, July
2, 1964. Roughly 40% travel with family members, friends, or paid guides;
13.3% with canes; 1% with dogs; 22.7% travel alone and without a cane. Ibid.







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I
THE POLICY OF INTEGRATIONISM
A. Integrationism the Answer

It is the thesis of this paper that the answers to these questions to be
returned by the courts, other agencies of government, and other public and
private bodies should be controlled by a policy of integrationism— that is,
a policy entitling the disabled to full participation in the life of the
community and encouraging and enabling them to do so—that this policy is
now, and for some time has been, the policy of the nation, declared as such
by the legislatures of the states and by the Congress of the United States;
and that the courts and others are" thus bound to use that policy at least
as guide, if not as mandate, in reaching their decisions, whatever may be
their views as to its desirability or feasibility.
The policy of integrationism is implicitly and explicitly adopted by the
nation and by all of the states in the set of laws, agencies and activities
known as the Rehabilitation Program. Commenced in several of the states as
long ago as 1918 and 1919,3 and given national support by Congress in 1920,4
that program has been enlarged in conception and increased in funding by
successive legislative amendments,5 by the impact of World War II, by
pressures from organized groups of the disabled, and by a growing sense of
its importance and potentialities.
At the head of the 1965 Rehabilitation Act Amendments stands this
declaration: "The Secretary is authorized to make grants as provided in . .
. this title for the purpose of assisting States in rehabihtating
handicapped individuals so that they may prepare for and engage in gainful
employment to the extent of their capabilities, thereby increasing not only
their social and economic well-being but also the productive capacity of the
Nation.'56 Specifically, the federal grants are to be made to these states
to aid them in meeting the costs of rehabilitation services,7 making
innovations in those services,8 expanding them by planning and initiating
special services,9 developing a comprehensive rehabilitation

3 E.g. Gen. Acts of Mass. 1918, ch. 231, at 201-02; Cal. Stats. 1919, ch.
183, at 273-74; Laws of III. 1919, S.B. No. 449, at 534-37; Laws of Minn.
1919, ch. 365, at 389-90; New Stat. 1919, ch. 182, at 329; Laws of N.J.
1919, ch. 74, at 138-44. For a general history of vocational rehabilitation,
see Obermann, A History of Vocational Rehabilitation ht America (1965).
*41 Stat. 73S.
BS7 Stat. 374 (1943), 68 Stat. 652 (1954), 79 Stat. 1282 (1965).
«79 Stat. 1282, 29 U.S.C. § 31 (Supp. I, 1965).
7 79 Stat. 1282, 1283, 29 U.S.C. §§ 31-33 (Supp. I, 1965).
a Ibid.
9 79 Stat. 1282, 1289, 29 U.S.C. § 34(a) (Supp. I, 1965).








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plan in each of the states,10 and for rehabilitation research,11
demonstration,12 and training projects.18 The federal Vocational
Rehabilitation Administration is authorized to conduct research and gather
and disseminate information with respect to the abilities, aptitudes and
capacities of handicapped individuals, development of their potentialities,
and their utilization in gainful and suitable employment.14 The 1965
Amendments also increase the appropriation for the earlier-created
President's Committee on National Employ the Physically Handicapped Week1"
to carry out the function indicated by its title, to stimulate similar
committees in the states, and to sponsor the annual event known as "Employ
the Handicapped Week."16 The purpose of the 1965 Amendments, said the House
Committee on Education and Labor,17 is "to provide the physically and
mentally disabled persons of this Nation an improved and expanded program of
services which will result in greater opportunities for them to more fully
enter into the life of our country as active participating citizens."18
According to the 1964 annual report of the federal Vocational Rehabilitation
Administration, in that year 119,000 disabled persons were rehabilitated
through this program into productive activity and employment at an
expenditure by states and nation of $133,000,000; 795 research and
demonstration projects were conducted at a cost to the government of
$15,179,000; and 447 teaching programs and 3,259 traineeships and research
fellowships were granted at a cost of $16,-528,000.18 Of the rehabilitated
persons, over seventy per cent were unemployed when they entered the
rehabilitation process, and most of the remainder had low earnings; about
16,000 were recipients of public assistance, and about 5,200 resided in
tax-supported institutions.20 With rehabilitation funds, scores of
communities and organizations have been aided in the construction of
comprehensive rehabilitation centers, special centers for specific
disabilities, and clinics in connection with hospitals— all devoted to
reducing and preventing dependency and thereby furthering the policy of
integrationism.21

io ma.
n 79 Stat. 1282, 1291, 29 U.S.C. § 37(a) (Supp. I, 196S).
12/6M.
i3/6fd.
l*Ibid.
15	Joint Resolution, 63 Stat. 409 (1949).
16	79 Stat. 1282, 1294, 29 U.S.C. § 38 (Supp. I, 1965). "H.R. Rep. No.
432, 89 Cong., 1st Sess. (196S). 18/<Z. at 2.
is 1964 U.S. Dep't of Health, Educ. & Welfare Ann. Rep. 327-29.
 20	id. at 329.
 21	Id. at 330, 331.







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All of the states receive grants-in-aid from, the federal government under
the vocational rehabilitation acts and necessarily commit themselves to the
implicit and explicit policy of those acts of maximum integrationism for the
disabled. In California, for example, an act coordinate to the national act
has been in existence since 1919.22 It currently vests state officials "with
all necessary powers and authority to cooperate with the government of the
United States"23 and declares: "It is the public policy of the State of
California to assist and encourage handicapped individuals to attain their
maximum usefulness and self-sufficiency in order that they may make their
full contribution to society."24 Other state services and institutions such
as the home-teacher-counselor service25 and the Orientation Center for the
Blind26 espouse this policy with equal emphasis.
With this very same objective in mind, the public assistance titles of the
Social Security Act have been amended: (1) to declare self-support one of
the purposes of that act with respect to the blind and the permanently and
totally disabled;27 (2) to encourage the provision of services to help
recipients attain or retain capability for self-support or self-care or
likely to prevent or reduce dependency;28 (3) to permit the blind and
disabled to retain, without consequence to their aid eligibility or grant,
other income and resources necessary to fulfill a plan for self-support;28
(4) to exempt various amounts of earned income from consideration in
determining the amount of the blind and disabled aid grants;30 and, (5) to
require that the states provide an incentive for employment giving
consideration to any expenses reasonably attributable to the earning of
income.31 All of these amendments were designed to add new dimensions to the
rehabilitative aspects of the public assistance programs.32 From its
beginning in 1954, the disability insurance program has contained a
declaration that it is "the policy of the Congress that

22	Cal. Stats. 1919, ch. 183, Cai. Educ. Code, ch. 10.S.
23	Cal. Educ. Code § 6977.
24	Cal. Edtjc. Code § 6971. 20 Cax. Educ. Code § 6209.
28 Cax. Educ. Code § 6201-08.
 27	70 Stat. 807, 849 (1956), 42 U.S.C. § 1201,1351 (1964).
 28	76 Stat. 172 (1962), 42 U.S.C. §§ 303, 1201, 1351 (1964).
2»49 Stat. 645 (1935), as amended, 42 U.S.C. §§ 1201-06 (1964), as amended
by 79 Stat. 286, 42 U.S.C. §§ 1201-06 (Supp. I, 1965); 64 Stat. 555 (1950),
as amended, 42 U.S.C. §§ 1351-55 (1964), as amended by 79 Stat. 286, 42
U.S.C. §§ 1202, 1382 (Supp. I, 1965); 76 Sfat. 197 (1962), 42 U.S.C. §§
1381-85 (1964).
3«79 Stat. 286, 418 (196S), 42 U.S.C. §§ 1201 (blind), 1351 (disabled)
(Supp. I, 1965).
3153 Stat. 1397 (1939), as amended, 42 U.S.C. § 1202 (Supp. I, 1965); 76
Stat. 172, 199 (1962), 42 U.S.C. § 1382 (1964).
32 S. Rep. No. 1589, 87th Cong., 2d Sess. 2, 3, 17-18, 21 (1962); S. Rep.
No. 1856, 86th Cong., 2d Sess. 52 (1960) ; S. Rep. No. 2133, 84th Cong., 2d
Sess. 29 (1956).







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disabled individuals applying for a determination of disability, and
disabled individuals who are entitled to child's insurance benefits, shall
be promptly referred" to the state rehabilitation agency, "for necessary
vocational rehabilitation services, to the end that the maximum number of
such individuals may be rehabilitated into productive activity."88
Rehabilitation reaches its point of culmination in remunerative employment
and self-support through jobs in the common callings, industry, agriculture,
independent businesses, and the professions. This congressional policy is
implemented primarily through the obligation of rehabilitation counselors
and other officials to assist disabled persons in finding such employment.
Persuasion and demonstration are the accepted techniques. In some areas,
however, there are and have been legal barriers to the employment of the
disabled; elsewhere, private resistance has not yielded to persuasion and
demonstration. Here the public commitment to the policy of integrationism
has required legislative or judicial action. Legislative action has often
been forthcoming, judicial action seldom. Congress has forbidden
discrimination against the handicapped in the federal civil service.34 A
number of states, beginning with California in 1939,35 have laid down a
similar ban.80 In addition some states have enacted special statutes
prohibiting such discrimination with respect to teaching in the public
schools,37 social work,38 physical therapy,39 and the practice of
chiropractic.40
Four other extensive legislative programs—the so-called architectural
barriers statutes, the programs for the education of disabled children and
youth in the regular public schools and colleges, the guide dog laws, and
the white cane laws—are built upon an integrationist foundation and
necessarily imply an integrationist objective. The architectural barriers
statutes provide that public buildings and facilities hereafter constructed
or remodeled shall be made "accessible to and functional for" the physically
handicapped,41 presupposing that the physically handicapped will make their
way to such buildings and facilities and have occasion to be in them. The
programs for the education of disabled students in the

33 68 Stat. 1052, 1082 (19S4), 42 U.S.C. § 422 (1964).
3*22 Stat. 403 (1883), as amended, 5 U.S.C. § 633(2)9 (1964).
35	Cal. Stats., 1939, ch. 139, § 1 now contained in Cal. Gov't Code §
19701.
36	Idaho Code Ann. § S9-102S (Supp. 196S); Mo. Stat. Ann. § 36.180
(Supp. 196S); Wis. Stat. Ann. §§ 63.32, 63.33 (Supp. 196S); N.Y. Cry. Serv.
Law § SS (Supp. 1965).
87 Cat.. Edtjc. Code § 13125; Mass. Gen. Laws Ann., ch. 71, § 38G (Supp.
1965); N.Y. Edttc. Law § 3004 ; 24 Pa. Stat. Ajjn. § 12-1209 (1959).
 38	Cat. Bus. & Prof. Code § 9030.
 39	Cax. Bus. & Prof. Code § 2631.
40	Cal. Bus. & Prop. Code §§ 1000-8.1.
41	For a review of these statutes see text accompanying notes 102-31
infra.







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public schools are supported by legislation opening the public schools to
the blind and deaf, providing special tools, equipment, books, and
supplementary teaching services, appropriating funds to enable blind
students to hire sighted readers, and exempting scholarships from
consideration in determining the amount of the blind aid grant.42 Guide dog
legislation strikes down restrictions on the use of the dog by the blind,
and sometimes by other incapacitated persons, on common carriers, in public
places and buildings, and in places of public accommodation.4,3 The white
cane laws are intended to make it safer for blind persons who travel with
the aid of this device.44 Congress in a Joint Resolution,45 and the
President in two Proclamations*6 setting aside a White Cane Safety Day, have
emphasized that the cane is not only a useful travel aid but also a symbol
of the independence and the social and economic integration of the blind.
>From the foregoing, it is abundantly clear that integration of the disabled
is the policy of the nation. This policy has been expressed by Congress and
by the state legislatures, not once, but many times, and not merely with
respect to a single, narrow area of human endeavor, but with respect to the
whole broad range of social, economic, and educational activity backed up
with numerous specially created agencies and instrumentalities of
government, with affirmative assistance and negative prohibitions, and with
vast expenditures of money amounting to hundreds of millions of dollars each
year.
The basic question to which we seek an answer is this: How has this
legislative policy of integrationism fared in the courts, and particularly
in the law of torts? Has the law of torts been redirected and remolded
according to the prescriptions of the policy? What redirecting and remolding
do these prescriptions require?

B. Implications of Integrationism for the Law of Torts

According to the policy of integrationism, the disabled are not to be
confined to their houses, asylums, and institutions—threatened, if they
emerge, with not only social sanctions but legal sanctions as well, in the
form of legal barriers, disadvantages, and inadequate protections. Nature
may confine them to an iron lung, a bed, a wheel chair, straps, braces, or
crutches, or to mouldering in health and idleness in chair-bound

42	See, e.g., Cal. Educ. Code §§ 6821, 93S4, 10651, 1S060, 18060.2,
18102, 18103, 18106; CAt. Weupare & Inst'ns Code §§ 12800, 18600-870.
43	For a review of these statutes see text accompanying notes 69-102
infra.
44	For a review of these statutes see text accompanying notes 360-411
infra. «78 Stat. 1003 (1964).
48 29 Fed. Reg. 14051 (1964) ; 30 Fed. Reg. 12931 (1965).






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blindness. Mistaken public and family attitudes and the dependent law may
not so confine them. Such confinement would in effect be a form of house
arrest, which in the houses of the poor may not be noticeably different from
outright imprisonment. Personal liberty, in this basic sense of the right
not to be unjustly or causelessly confined, has been taken as a fundamental,
natural, and social right in Chapter 39 of Magna Charta and the due process
clauses of federal and state constitutions. If the disabled have the right
to live in the world, they must have the right to make their way into it and
therefore must be entitled to use the indispensable means of access, and to
use them on terms that will make the original right effective. A right on
such terms to the use of the streets, walks, roads and highways is a
rock-bottom minimum. The right to gain access to the world in which they
have a right to live must also include, as a part of the same rock-bottom
minimum, the right to utilize the common thoroughfares by riding on common
carriers. Upon descending from these, the disabled have a right of
uninhibited and equal access to places of public accommodation to seek their
ease, rest, sustenance, or recreation.47
II

THE RIGHT TO LIFE EST THE "WORLD—THE ABLE-BODIED AND

THE DISABLED

With respect to able-bodied groups and individuals, the basic rights of
effective public access have been long established and newly vindi
47
Places of public accommodation are defined in some of the state acts in
general terms; in others by specific listing. Utah's statute illustrates the
former method: "All persons within the jurisdiction of this state are free
and equal and are entitled to the full and equal accommodations, advantages,
facilities, privileges, goods and services in all business establishments
and in all places of public accommodation of every kind whatsoever . . . ."
Utah Code Ann. § 13-7-1 to 13-7-4 (Supp. 1965); the ordinance of Rockville,
Maryland, Ordinance 43-64, 196S, 9 Race Relations Rep. 189S (1964-65),
illustrates the exhaustive list method:
Section 13-2.02 ... a. Any inn, hotel, motel or other establishment which
provides
lodging to transient or permanent guests;
 b.	Any restaurant, cafeteria, lunchroom, lunch-counter, soda fountain,
or other facility principally engaged in selling food or beverages, whether
alcoholic or not, for consumption on or off the premises, including, but not
limited to, any such facility located on the premises of any retail
establishment, or any gasoline station;
 c.	Any motion picture house, theater, concert hall, meeting hall,
sports arena, stadium, recreation park, amusement park, picnic grounds,
fair, circus, carnival, skating rink, swimming pool, tennis court, golf
course, playground, bowling alley, gymnasium, shooting gallery, billiard or
pool room, or any place used for common or public entertainment, exhibition,
sports or recreational activity or other assembly;
 d.	Any retail store engaged in selling commodities of any type to the
public;
 e.	Any service establishment serving the public, including but not
limited to all hospitals, clinics, barber shops, beauty parlors, business or
commercial services, repair services, or other services of any type offered
to the public.






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cated. They were safeguarded at the common law as to roads and streets,
inns, other victualers, ferries, horseshoers, and carriers.48 Three quarters
of the states of the Union implicitly assume their general applicability
while forbidding the discriminatory denial of them on the basis of race,
creed, color, or ethnic origin.49 Through the Civil Rights Act of 1875,50
Congress sought to give them national protection. They were generally
acknowledged, and, in part, expressly affirmed, by the United States Supreme
Court in 1883 at the time the Civil Rights Act of 1875 was held not to be
authorized by the fourteenth amendment.51 In the debates upon the Civil
Rights Act of 1964, these rights were loudly proclaimed.52 The Senate
Commerce Committee saw the denial of the right of equal access as an affront
to human dignity,53 the guarantee of the right as the "time honored means to
freedom and liberty,"54 and public accommodations themselves as existing
"for the purpose of enhancing the individual freedom and liberty of human
beings."55 The House Judiciary Committee thought the right of equal access
to public accommodations "so distinctive in nature that its denial
constitutes a shocking refutation of a free society." "[T]he badge of
citizenship . . . demands that establishments that do public business for
private profit not discriminate . . . ."56 President Lyndon Johnson in
sponsoring enactment of the Civil Rights Act of 1964 declared "this is not
merely ah economic issue—or a social, political or international issue. It
is a moral issue. ... All members of the public should have equal access to
facilities open to the public."57 The United

48 Kisten v. Hildebrand, 48 Ky. (9 B. Mon.) 72 (1849) (dictum) ; Markham v.
Brown, 8 N.H. 523 (1837); DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908);
Hogan v. Nashville Interuban Ry., 131 Tenn. 244, 174 S.W. 1118 (1915)
(dictum); Rex v. Irens, 7 C. & P. 213, 173 Eng. Rep. 94 (183S); Boss v.
Lytton, S C. & P. 407, 24 E.C.L. 628 (K3. 1832); Lane v. Cotton, 12 Mod. 472
(1701); White's case, 2 Dyer Rep. 158 (1558); De Termino Pascal, Keilway 50,
PL 4 (1450); 3 Blackstone, Commentaries * 166; Hale, 1 Harg. Law Tracts 78
(1787).
40 See the list of thirty-two states supplied by Clark, J., in Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 259 (1964). For states
not on Justice Clark's list see Ariz. Rev. Stat. Ann. §§ 41-1441, 41-1442
(Supp. 1965); New. Stat. 1965, ch. 332; Utah Code Ann. § 13-7-1 (Supp.
1965); Mo. Ann. Stat. § 314.010 (Supp. 1965).
eo18 Stat. 33S. That act forbade discrimination in "inns, public conveyances
on land or water, theaters, or other places of public amusement . . . ."
"I The Civil Rights Cases, 109 U.S. 3, 24-25 (1S83).
52 See, e.g., 110 Cong. Rec. 12876 (1964) (Remarks of Senator Humphrey); id.
at 1928 (Remarks of Rep. Joelson); id. at 1519-21 (Remarks of Rep. Celler);
id. at 1538-40 (Remarks of Rep. Rodino); id. at 1540-42 (Remarks of Rep.
Lindsay) ; id. at 1601-02 (Remarks of Rep. Math ?as).
D3S. Rep. No. 872, 88th Cong., 2d Sess. IS (1964).
ciId. at 22. ibid.
ecHH. Rep. No. 914, Part 2, 88th Cong., 1st Sess. 7 (1963). W State of the
Union Message, 110 Cong. Rec. 115 (1964).








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States Supreme Court, in passing upon the constitutionality of that
legislation, joined in the refrain that the denial of equal access was a
social and moral wrong as well as a burden on commerce.58 The act itself
speaks of the entitlement of "all persons ... to the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation."159
So the rights at stake are not merely procedural; nor are they comparative.
They are substantive and belong to all men. Evocative reference to these,
rather than a truly comparative conception, lies at the heart of the
movement and legislation to gain access to public accommodations. The
language is that of the equal protection clause of the fourteenth amendment
and of the Civil Rights Act of 1866.60 The vision, ardor, and simple
principles are those of the Abolitionists.61 The rhetoric is replete with
moral reform, social justice, and natural rights. The sentences end with a
prohibition against discrimination based on race, creed, color, ancestry, or
national origin. But they begin with the declaration that "all persons are
entitled to the full and equal enjoyment... of privileges .. . and
accommodations."62 The legislation in Arizona drives the point home.63 An
exception to the ban on discrimination based on the listed grounds, one
would suppose, would permit discrimination on those grounds for particular
purposes and presumably witlin narrow limits. Not so in Arizona. Assuming
that a basic right of access is being guaranteed, the statute in that state
provides that certain persons under certain conditions may be excluded. The
excluded persons and conditions are unrelated to the forbidden grounds of
discrimination. The persons are those who are of "lewd or immoral
character," guilty of boisterous conduct or physical violence, under the
influence of alcohol or narcotics, or who violate nondiscriminatory
regulations of the place.64 And not a blind man or a cripple is among them.
However much mingled with talk about burden on commerce, however much
buttressed with common law precedents and founded in history, however much
explicitly designed to strike down discriminations based on race, color,
religion, national origin and sex, however much a product of the modern-day
civil rights revolution, aimed principally at

58	Heart of Atlanta Motel, Inc. y. United States, 379 U.S. 241, 257
(1964).
59	78 Stat. 241, 243, 42 U.S.C. § 2000(a) (1964). so 14 Stat. 27.
61 See tenBroek, Equal Under Law (196S); Graham, The Early Anti-Slavery
Backgrounds of the Fourteenth Amendment, 19S0 Wis. L. Rev. 479, 610.
62E.g., Civil Rights Act of 1964, 78 Stat. 241, 243, 42 U.S.C. § 2000(a)
(1964); New. Stat. 196S, ch. 332, § 4; Utah Code Ann. §§ 13-7-1 to 13-7-3
(Supp. 196S).
 63	Ariz. Rev. Stat. Ann., ch. 27 (Supp. 196S).
 64	Ariz. Rev. Stat. Ann. § 41-1442 (C) (Supp. 196S).







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securing equal rights for colored persons, the statutes of the states in
their present form, the Civil Rights Act of 1964, the congressional debates
and proceedings upon it, and the judicial opinions validating its
constitutionality—all, implicitly and explicitly, necessarily and
unavoidably, are built upon a recognition of the absolute importance to the
nation, community and individual, of persons having, holding, and enjoying
rights of access to the community and to the public, quasi-pubhc, and
private instrumentalities necessary to make those rights effective.
Are humans to be denied human rights? Are persons after all not to be
persons if they are physically disabled? Are members of the community to be
robbed of their rights to live in the community, their certificates
cancelled upon development or discovery of disability? These rhetorical
questions, the hallmarks of crusade and reform throughout American history,
have in our generation become the plea of the disabled as well. As with the
black man, so. with the blind. As with the Puerto Rican, so with the
post-polio. As with the Indian, so with the indigent disabled.
Without legal -redress in many areas, and with the frequency of arbitrary
action, disabled persons have been turned away from trains, buses, and other
common carriers, from lodgings of various sorts, from the rental of public
and private housing, from bars, restaurants and places of public amusement,
from banks to rent a safety deposit box, from other kinds of banks to give a
pint of blood, and from gambling casinos in Nevada,65 declared by statute as
well as by common experience to be places in which the public is
accommodated.66
In his widely used, much-quoted and, I think, justly celebrated text on the
Law of Torts, Dean Prosser announces a remarkable proposition: "The man who
is blind, or deaf, or lame, or is otherwise physically disabled, is entitled
to live in the world. . . ."67 Taken at its most literal level, surely this
proposition proclaims a platitude. Obviously, we do not kill off our
disabled, as the Greeks and Romans did their deformed babies. There is no
campaign afoot in the land to extend euthanasia proposals from the incurably
ill and the sufferers of unbearable pain to the halt, the lame, and the
blind.

65	New. Stat. 1965, ch. 332, § 1.
66	tenBroek, Cross of Blindness, 23 Vitai, Speeches 732 (1957).
g7 Prosser, Torts § 32, at 155 (3d ed. 1964). Among the "otherwise
physically disabled," Dean Prosser lists: bone condition, Wray v. Fairfield
Amusement Co., 126 Conn. 221, 10 A.2d 600 (1940); crippled, lacking
coordination on crutches, Goodman v. Norwalk Jewish Center, Inc., 145 Conn.
146, 139 A.2d 812 (1958); short stature, Mahan v. State, Use of Carr, 172
Md. 373, 191 Atl. 575 (1937); lame, Bianchetti v. Luce, 222 Mo. App. 282, 2
S.W.2d 129 (1927); club foot, Texas & N.OJRJl. v. Bean, 55 Tex. Civ. App.
341, 119 S.W. 328 (1909).








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Read less literally, the right to live in the world is something more than
the right to remain in it. Now Dean Prosser's proposition assumes something
of the significance of one of Jefferson's self-evident truths—¦ the
inalienable right to life. In fact, Dean Prosser updates Thomas Jefferson:
He moves from a noun to a verb—from the right to life to the right to
live—and specifies, somewhat redundantly, that this shall be in the world.
In the vernacular of the day, Dean Prosser is talking about the right "to
live a little."
Taken in its broader sense, Dean Prosser's proposition is amply capable of
accommodating the most enlightened social policy for the physically disabled
in the law of torts and elsewhere. Properly understood, that proposition
might be taken as a definitive statement of the goals, as a comprehensive
formulation of the policy of integrationism.
Dean Prosser's grand pronouncement, however, while purporting to be drawn
from the case law, and while seeming to express for the law of torts the
legislatively established policy of the integration of the disabled, is in
no sense an accurate summary of the law of torts as that law stands today.
The judges either qualify or ignore Dean Prosser's pronouncement and the
integrationist policy. In some areas, the pronouncement and the policy are
completely rejected; in others, they are given only halting and partial
credence; and in none are they fully and positively implemented by the
courts. Dean Prosser himself immediately emasculates his proposition.68 He
applies it only to a narrow realm of street accidents. And even there, while
freeing the disabled of negligence per se for being where they are,, he
hobbles them with the views of the able-bodied as to what their reasonable
conduct should be. In these areas, the sum total of the law's beneficence to
the disabled seeking a full-fledged right to live in the world can be easily
and briefly summarized: The courts, prodding the tardy genius of the common
law, have extended a variant of the reasonable man concept to those who
injure the disabled on the streets, in traffic, and on common carriers. This
constitutes a meager and inadequate accomplishment in the light of the
integrationist purpose and the legislative declaration of policy.
Unawareness of the policy and its applicability in various situations,
rather than considered judgment, as to its social importance,
practicability, or relevance in the law of torts, seems to be the principal
reason for the widespread disregard of the policy.

A. The Rights of Dogs and the Rights of Men

The disabled are neither specifically included nor specifically excluded
from the general public accommodations legislation. That legislation

68 Prosser, op. at. supra note 67.






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was extended at the time of passage to go beyond forbidding discrimination
on a basis of race, color, and national origin, to cover discrimination
based on religion09 and, in employment, on sex.70 During its passage through
Congress, Congressman Dowdy offered an amendment to add age to the
proscribed bases of discrimination.71 The amendment was defeated by a vote
of 123 to 94 after some members of the House had stated that they agreed
with the substance and content of the motion, but thought the procedures set
out in the act were not suited to the object sought.72 The final act did,
however, require that the Secretary of Labor make a "full and complete study
of the factors which might tend to result in discrimination in employment
because of age and of the consequences of such discrimination on the economy
and individuals affected."73 A proposal by the National Federation of the
Blind to extend the protection of the act to the disabled did not reach the
stage of formal introduction. The Civil Rights Act of 1964 does extend to
"all persons" and does imply substantive rights. It is therefore possible,
if not probable, that when we move away from the moment and the immediate
cause of the legislation, the judges will bring the disabled within its
shelter.
While state and national general public accommodations legislation has not
expressly covered the disabled, that legislation has served as the model and
source of specific public accommodations legislation for the blind in
twenty-five states.74 This has come about in a strange way. The blind have
been led by the guide dogs not only into places of public accommodation but
into the right to be there. It is not inaccurate to say that the basic right
of all men to join their communities and to gain access to them by the
normal means, including the use of public accommodations, has been gained by
the blind in these twenty-five states as an

60 Civil Rights Act of 1964, 78 Stat. 241, 243, 42 U.S.C § 2000(a) (1964).
"78 Stat. 241, 255, 42 U.S.C. § 2000(e)-2 (1964). 71110 Cong. Rec. 2596
(1964). w no Cong. Rec. 2599 (1964).
 73	78 Stat. 241, 265, 42 U.S.C. § 2000(e)-14 (1964).
 74	Ark. Stat. §§ 78-211 to 78-213 (1957); Cal. Pen-. Code § 643.5;
Coxo. Rev. Stat. Ann. § 115-12-9 (1953) ; Conn. Gen. Stat. Rev. § 22-346a
(1958); Fla. Stat. § 413.08 (1963); Ga. Code Ann. §§ 79-601, 79-9901 (1964);
Hawaii Rev. Laws §§ 109-20, 109-21 (1957); Idaho Code Ann. § 39-1604 (Supp.
1965); In. Ann. Stat. ch. Ill 2/3, § 40a (Smith-Hurd 1954); Ind. Ann. Stat.
§§ 16-212, 16-213 (Supp. 1964); Iowa Code Ann. §§ 351.30-351.32 (Supp.
1964); La. Rev. Stat. Ann. §§ Si, 52 (Supp. 1964); Maine Rev. Stat. Ann § S4
(Supp. 1963); Mass. Gen. Ann. Laws § 98A (1956); Mich. Stat. Ann. §
28.770(7/8) (1954); Mo. Ann. Stat. § 209.140 (1962); N.j. Stat. Ann. §§
48:3-33, 48:3-34 (1940); NJM. Stat. Ann. § 47-1-7 (1953); N.Y. Pen. Law §
518; R.I. Gen. Laws Ann. §§ 39-2-16 to 39-2-17 (1956); Tenn. Code Ann. §
62-717 (Supp. 1965); Tex. Rev. Cry. Stat. art. 4596a, 889a (1948); Va. Code
Ann. § 35-42.1 (Supp. 1964); Wash. Rev. Code §§ 49.60.216, 81.28.140 (1962);
W. Va. Code Ann. §§ 2568(1), 2569 (1961).







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incident to their reliance on the dogs and the need to have them exempted
from restrictions with regard to pets. Whether the man takes the dog or the
dog takes the man may be a question of some importance. There is quite a
difference between saying, as California does, for example, that "any blind
person"75 is entitled to have the dog with him or, no "blind person . . .
shall be denied admittance" though he has a guide dog with him;76 and
saying, on the other hand, as New Mexico does, that "no person shall debar a
guide dog ... in any place of public accommodation . . . provided such dog
is safely muzzled and is under the control of the blind person."77
Whatever the relative roles of man and dog, the almost universal ban against
dogs and other pets in places of public accommodation—a ban no doubt based
on good reasons of public health, safety and convenience —had to be lifted
in favor of the guide dog and its master if its services were to be
available to him in getting about.78 Since the exclusionary rule against
pets is founded not only in practice and regulation but also in legislation,
remedy had to be sought from the legislatures.70 Organizations of the blind,
individual guide dog owners, and the management of guide dog schools set to
work, jointly and severally, to secure the statutes—which now exist in half
the states of the Union—guaranteeing the right of the man to take the dog
and the dog to take the man into public places and places of public
accommodation.80 In a very few statutes, such as that of Idaho, the right
has been effected by simply making an exception to the prohibition that "no
dog, cat or other animal shall be permitted in any eating place . . . ."81
In most states, however, reliance

7BCal. Pen. Code § 643.5(a). ™Cal. Pen. Code § 643.5(b). "NJVL Stat. Ann. §
47-1-7 (1954).
78	For recent examples of the exclusion of a blind person and guide dog
from a restaurant see Guide Dog v. Restaurant, N.Y. Times, Nov. 3, 1964,
reprinted in Braille Monitor, Jan. 1965, p. 22; from public housing project
see, New Orleans Housing Project Lifts Guide Dog Ban, Braille Monitor, Sept.
1965, p. 38.
79	The only case reported concerning the guide dog statutes arose in
Texas in 1945 (Boyd v. State, 148 Tex. Crim. 171, 186 S.W.2d 257) where the
proprietor of a restaurant denied admission to a blind woman accompanied by
a "seeing-eye" dog because of the dog. The proprietor was convicted of
violating the Texas statute which relates primarily to carriers, but the
conviction was reversed on appeal. The basis of the appellate court's action
was the failure of the legislature to include facilities other than
conveyances in the caption of the act as required by article I'll, § 35 of
the Texas Constitution. The court, therefore, held § 2 of bill
unconstitutional, but found the remaining sections severable.
80	For general discussions of the use of guide dogs by blind persons,
the training of dogs and masters, and the establishment of guide dog
schools, see Chevigny, My Eyes Have a Coed Nose (1946); Exjstis, The Seeing
Eye (1927); Hartweix, Docs Aoatnst Darkness (1934); Zahl, Blindness, ch. 24
(1950).
81	Idaho Code Ann. § 39-1604 (Supp. 1965). In 1965 Idaho adopted a
guide dog statute based on that of California. Idaho Code Ann. § 18-5812-A
(Supp. 1965).







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is placed on the formulations in anti-race discrimination legislation which
lie ready to guide draftsmanship and statutory classification and which
suggest themselves as highly relevant and appropriate in the circumstances.
The Massachusetts legislation follows the model more closely than many
states, but it may be used to illustrate the point.
In Massachusetts, a trunk statute was adopted at the close of the Civil War
in 1865.82 At that time, color and race discrimination in "public places of
amusement, public conveyance or public meeting"83 was made an offense
punishable by fine. The original provision has since been amended a number
of times,84 most recently and basically in 1950, by adding religion to the
list of forbidden grounds of discrimination and by adding two sentences
constituting the heart of the modern civil rights public accommodations
formulation: "All persons shall have the right to the full and equal
accommodations, advantages, facilities and privileges of any place of public
accommodation, resort or amusement, subject only to the conditions and
limitations established by law and applicable alike to all persons. This
right is recognized and declared to be a civil right."85 Before 1950 three
other subsections had been added: one in 1941 forbidding race, color or
nationality discriminations in employment on public works and in dispensing
public welfare;86 the second in 1943, making punishable as group libel
publications intended maliciously to promote hatred of any group because of
its race or color;87 and the third, in 1938, declaring, under penal
sanctions, "any blind person accompanied" by a guide dog, "properly and
safely muzzled," to be "entitled to any and all accommodations, advantages,
facilities and privileges of all public conveyances, public amusement and
places of . . . public accommodations ... to which persons not accompanied
by dogs are entitled, subject only to the conditions and limitations
applicable to all persons not accompanied by dogs . . . ."8S Extra fare for
the dog is not to be charged on public conveyances.
Again, the formulation employed in Georgia,89 Indiana,00 and Louisiana91 is
substantially the same: "Any person who by reason of loss or

82 Mass. Acts & Resolves 186S, ch. 277, at 650. S3 Ibid.
 84	Mass. Acts & Resolves 1866, ch. 252, at 242; Mass. Acts & Resolves
1885, ch. 316, at 774; Mass. Acts & Resolves 1893, ch. 43, at 1320; Mass.
Acts & Resolves 1895, ch. 461, at S19.
 85	Mass. Gen. Laws Ann. ch. 272, § 98 (1959).
 86	Mass. Gen. Laws Ann. ch. 272, § 98B (1959).
 87	Mass. Gen. Laws Ann. ch. 272, § 98C (1959).
 88	Mass. Gen. Laws Ann. ch. 272, § 98A (1959).
89	Ga. Code Ann. § 601 (Supp. 1964). SOInd. Ann. Stat. § 16-212 (Supp.
1964).
8!La. Rev. Stat. Ann. § 21:52 (Supp. 1964).








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impairment of eyesight is accompanied by a dog . . . used as a leader or
guide ... is entitled to full and equal accommodations, advantages,
faculties, and privileges of all public conveyances, hotels, lodging places,
places of public accommodation, amusement or resort, and other places ' to
which the general public is invited, and shall be entitled to be accompanied
by such dog . . . subject only to the conditions and limitations applicable
to persons not so accompanied ... ."
Variations in detail in these statutes are numerous. They relate to: the
mode of defining the blind persons or others entitled to the benefits of the
act;82 the public accommodations to which the act applies;03 the presence or
absence of restrictions on charging for the dog;04 training, harnessing,
leashing and muzzling the dog;96 credentialing the master

 92	All the statutes require that the dog user be blind or partially
blind, with the exception of Idaho, which permits guide dog trainers the
same access to eating establishments as is afforded the blind user.
 93	Seventeen jurisdictions provide the dog-led blind with access to
places of public accommodation in general and also to public conveyances
(Arkansas, California, Connecticut, Georgia, Indiana, Iowa, Louisiana,
Maine, Massachusetts, Michigan, Missouri, New Mexico, New York (except movie
theatres), Rhode Island (except railroad cars other than chair cars on
passenger trains), Tennessee, Texas, Washington). Five more provide access
to public conveyances (Colorado, Hawaii, Illinois, New Jersey, West
Virginia), two provide access only to eating places (Idaho, Virginia), and
the remaining state, access to hotels and eating places (Florida). See note
74 supra for the applicable statutes.
8* Sixteen jurisdictions have provisions prohibiting the exacting of
additional charges because of the access afforded the guide dog (Arkansas,
California, Connecticut, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maine,
Massachusetts, Missouri, New York, Rhode Island, Texas, Washington, West
Virginia). In six states the prohibition is expressly applicable to both
public places and public conveyances (Arkansas, California, Connecticut,
Iowa, Missouri, Texas), expressly applicable to common carriers only in five
states (Maine, Massachusetts, Rhode Island, Washington, West Virginia),
impliedly applicable to public places and public conveyances in four states
(Georgia, Indiana, Louisiana, New York), and impliedly applicable to
carriers only in one state, Hawaii. See note 74 supra for the applicable
statutes.
95 Louisiana requires that both the dog and the master be trained at a
"qualified dog guide school," such training to enable the master to use the
particular dog as a guide. None of the states extends the statutory right to
the "otherwise incapacitated" as is done in some white cane laws. See note
378 infra and accompanying text. Eleven states (Colorado, Connecticut,
Georgia, Illinois, Maine, Massachusetts, Missouri, New Mexico, Texas,
Washington, West Virginia) require that the dog guide be muzzled. The
requirement is mandatory except in Maine, where the management of the
facility to be charged may or may not so demand.
Seven states require harnessing (Arkansas, Connecticut, Iowa, Michigan,
Tennessee, Washington, West Virginia). The language used in six of these is
typified by the Arkansas provision which provides the right of access "when
said dog guide is properly harnessed . .. ." The seventh state, Washington,
requires harnessing only of "guide dogs" which are entitled to enter public
places, as distinguished from "seeing eye" dogs, which can board public
conveyances. Only one state, Idaho, provides that the dog need be leashed. A
harness would seem to satisfy that requirement. Six states require expressly
that the guide dog be under the control of the master (Colorado,
Connecticut, Illinois, New Jersey, Rhode Island, Virginia). See note 74
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and the dog;06 custody of the dog in public places and conveyances;87
exceptions to the operations of the act;98 whether the benefit of the act is
expressed in terms of a positively conferred right on the master and the dog
or a negative limitation on the operators of places of public
accommodation;09 and the penalies which may be imposed for breach of

05 Six states require the dog be "specially trained" (California, Idaho,
Louisiana, Maine, Texas, Washington) of which two also require the user have
credentials for the dog (Louisiana, Maine). Six states require the dog guide
be properly credentialed (Connecticut, Louisiana, Maine, Michigan,
Tennessee, West Virginia). Michigan requires the certifying school be
approved by the Veteran's Administration and West Virginia requires the dog
be identified by a certificate issued by "The Seeing Eye." Maine is silent
as to the origin of the credential which may be required under the statute.
Connecticut and Maine require the credential be presented upon request of
the agency to be charged under the statute. Louisiana provides the operation
of the statute is inapplicable unless evidence of training is "furnished"—to
whom or when is not indicated. Michigan and Tennessee require the blind
person must first present for inspection .the credentials on the dog, and
West Virginia requires only that the blind person accompanied by a dog guide
carry the prescribed certificate of identification, with no language
requiring presentment upon demand or otherwise. See note 74 supra for the
applicable statutes.
07	Six states make express provisions regarding the custody of the
admitted dog (Colorado, Connecticut, Illinois, New Jersey, Rhode Island,
Virginia). Five of these grant the right of immediate custody to the master;
the sixth, New Jersey, provides the master is to have custody, but subject
to the rules and regulations prescribed by the Board of Public Utility.
Texas and Washington also provide expressly for the custody of the dog
aboard public conveyances; the former providing the carrier shall designate
where the dog is to ride and the latter granting custody to the master.
These two states have separate provisions for public places and common
carriers, the custody in public places is impliedly granted the blind
master.
Nineteen jurisdictions, including Texas and Washington, impliedly grant
custody of the dog to the blind person while in places of public
accommodation and/or public conveyances, with the exceptions as noted above
(Arkansas, California, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa,
Louisiana, Maine, Massachusetts, Michigan, Missouri, New Mexico, New York,
Tennessee, Texas, Washington, West Virginia). The implication arises from
the language of the statute permitting access to the "accompanying" dog, or
that allowing the user to "take" the dog with him. The implication is
strongest in the three states (Georgia, Indiana, Louisiana), which prohibit
the admitted dog from occupying a seat in public conveyances. See note 74
supra for the applicable statutes.
08	Two states provide exceptions to the operation of their statutes
where the admission of the dog guide would involve "danger." Hawaii provides
the exception where the pres - ence of the dog would endanger "other
passengers"; New York provides the exception where such access would "tend
to create a dangerous situation.. .." The Hawaiian exception, while lacking
specificity as to what danger is to be apprehended, does limit the range of
the danger, while New York's exception is not so limited, the escape
provision appears too vague to lend certainty to the statute. New York also
excepts motion picture theatres from the scope of the statute. Rhode
Island's statute excepts all railroad passenger cars other than chair cars,
a loss of substantial significance. Hawaii also excepts the statute's
applicability where the dog is unclean. While the statute does not specify
the standard of uncleanliness essential to the exception, the exception does
appear a reasonable one. See note 74 supra for the applicable statutes.
89 Seventeen states confer a positive right (Arkansas, California,
Connecticut, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Maine,
Massachusetts, Missouri, New Jersey, Rhode Island, Texas, Virginia,
Washington); eleven impose a negative duty on the manage






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the act.100
Among all these variations in detail, however, the substantial formulation
is generally the same: It is the formulation of the civil rights acts. The
strengths and weaknesses of the formulation are the same in the one case as
in the other for the meaning is the same. The terms are those of
discrimination, that is, of classification and comparison. If other people
similarly situated are entitled to the right, then the disabled are; and so
are persons of minority race, color, and religion. The right may be denied
to all if this is done on equal terms; that is, if the conditions and
limitations are applicable to all, or, in other words, are made regardless
of race, color, religion, disability, or being guided by a dog.
But the purpose of the legislation is a purpose with respect to which all
people are similarly situated. The right of access to public accommodations
and common carriers is a civil right. It is a basic right indispensable to
participation in the community, a substantive right to which all are fully
and equally entitled. The basic contradictions and reconciliations of
procedural and comparative phraseology, on the one hand, and the fundamental
substantive rights, on the other hand, implicit and explicit in the
fourteenth amendment are here repeated.101 Thus, while the guide dog
statutes focus on the immediate problem of gaining access by persons with
guide dogs and their right of access is declared to be the same as for those
without dogs, and while, accordingly, no particular mention is made of the
right of access of those without dogs, yet their right is presupposed,
implicit and assumed and hence is incorporated within the benefits conferred
by the act. The right of all blind persons,

ment of tie facility (California, Colorado, Hawaii, Illinois, Michigan, New
Mexico, New York, Rhode Island, Tennessee, Texas, Washington); and West
Virginia imposes a positive duty on the management of the facility to give
access to the dog-led blind. California and Rhode" Island expressly confer a
positive right on the dog-user and, in the same section, impose the
correlative negative duty on the facility in express terms; Texas and
Washington each have separate statutes for each of the two types of
facilities. The Texas provisions are a conferral of a positive right on the
blind with respect to public conveyances and an imposition of a negative
duty on the management of the facility respecting public places. The
Washington statutes are exactly opposite, the positive right relating to
public places and the negative duty to public conveyances. See note 74 supra
for the applicable statutes.
100	Nineteen states provide a penalty for the violation of the statutes
(Arkansas, Cali - fornia, Connecticut, Florida, Georgia, Hawaii, Indiana,
Iowa, Louisiana, Maine, Massachu - setts, Michigan, Missouri, New Mejdco,
New York, Rhode Island, Tennessee, Texas, West ¦Virginia) all of which are
misdemeanors. It should be noted that the inclusion of a penalty provision
does not necessarily relate to all provisions of the statute; hence Rhode
Island's penalty provision is applicable only to the denial of the blind's
right to be accompanied by the dog guide aboard public conveyances and
elevators. See note 74 supra for the applicable statutes.
101	See Harris, The Quest eor Equaiity (1960); tenBroee, Equal Under Law
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and more generally, of all disabled persons, to the use of public
accommodations is therefore consequentially safeguarded by these acts.
Moreover, the existence of these acts in twenty-five states, with their
explicit avowals and implicit assumptions, supported by the right of people
generally to the use of public accommodations and common carriers, might
reasonably be taken as a sufficient declaration of public policy and
fundamental right to found judicial decisions in the other states
vindicating the right of the disabled to full and equal access to these
necessary instrumentalities of community life. Ultimately, indeed, such may
be seen as a mandate of the equal protection clause of the fourteenth
amendment.

B. Architectural Barriers

Guide dog legislation is intended to safeguard rights of access to and use
of common carriers and public accommodations. The legislation seeks to
accomplish the purpose by declaring the rights, in form at least on a
comparative basis, and prohibiting the discriminatory denial or withdrawal
of them. The legislation deals only with one group of the disabled: the
blind, a group otherwise able-bodied and perfectly capable of mounting
stairs and passing through narrow doorways once they find them. The formula
employed in the guide dog legislation is inadequate on its face to deal with
the general problem of architectural barriers. Architectural barriers are
defined by the American Standards Association as features of "the common
design and construction of buildings and facilities [that] cause problems
for the physically handicapped that lessen the social and economic gains now
evident in the rehabilitation of these individuals ... [that] make it very
difficult to project the physically handicapped into normal situations of
education, recreation, and employment."102 Simply declaring that the
disabled, too, have rights of access and use and forbidding building
operators to deny them would do little for the wheel chair-bound paraplegic
physically denied access to and use of flights of stairs and narrow
doorways. Moreover, prohibiting the installation of such barriers would not
do the trick. A more constructive and affirmative approach is required.
Buildings and facilities must be

102 American Standards Ass'n, American Standard Specifications por Making
Btjixdincs and Facilities Accessible to, and Usable By, the Physically
Handicapped 3
 (1961)	. For some of the growing literature on architectural barriers, see
Goldsmith, Designino tor the Disabled (1963); id. at 226-36 (Bibliography);
Nugent, Design of Buildings to Permit their Use by the Physically
Handicapped, New Building Research, Fall, 1960, p. 51; Caniff, Architectural
Barriers: A Personal Problem, 108 Cong. Rec, app. 838
 (1962)	.








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erected according to a design taking account of the disabled and making
buildings and facilities accessible to them and functional for them.
Specifications intended to do this were prepared by the American Standards
Association in 19 61.103 They were developed in consultation with a large
number of concerned government officials, private agencies with programs for
the disabled, groups of the disabled themselves, and relevant business and
professional associations. Principal sponsorship, however, came from the
National Society for Crippled Children and Adults and the President's
Committee on National Employ the Physically Handicapped Week. The
specifications include: wide and suitably located parking places for the
cars of the disabled;104 at least one ground level or ramped entrance;105
wide doors that can be opened with a single effort106 and with enough
neighboring level floor space for wheel chair maneuver;107 single level
stories or ramp-connected levels;108 toilets, mirrors, towel dispensers,109
drinking fountains,110 and public telephones111 of the proper height to be
reached from wheel chairs; identifying features enabling the blind to find
particular rooms;112 auditory as well as visual signals;113 open manholes,
access panels, and excavations in the buildings and on the grounds
barricaded at least eight feet from the hazard and warning devices used;114
and, a prohibition on low- hanging or protruding door closers, signs, and
fixtures.115 The specifications are intended not only for public buildings
and facilities, but for any buildings and facilities generally used by the
public. They are applicable in remodeling present structures as well as in
new construction.
While the specifications would seem a necessity for the disabled confined to
wheel chairs and only less so for those on crutches and braces, they are
also of importance for the estimated five million Americans with mobility
impairments of other sorts. The Standards list among the direct
beneficiaries those with "non-ambulatory disabilities," "semiambulatory
disabilities," "sight disabilities," "hearing disabilities," "dis
103
American Standards Ass'n, op. cit. supra note 102. i«4 id. at § 43.2. 105
Jd. at § 4.1. i°6 Id. at § 5.3.1. 10t«. at § 5.3.2.
 108	Id. at § 5.5.2.
 109	Id. at § 5.6. "0 id. at § 5.7. in/d. at § 5.8. 112 Id. at § 5.11. us
Id. at § 5.12. h4 Id. at § 5.13.2. "e/d. at §§ 5.13.3, 5.13.4.








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abiltities of incoordination,"116 and "those manifestations of the aging
processes that significantly reduce mobility, flexibility, coordination, and
perceptiveness. . . ."117 The different and sometimes contradictory needs of
these groups illustrate the fallacy of treating the disabled as a single
homogeneous class for all purposes. Although all the disabled are helped by
eliminating stairs, the crippled are helped far more than the deaf.
Manholes, access panels and excavations are of greatest peril for the blind
but are also hazardous for all. The deaf require visual signals which are of
no use for the blind and vice versa for auditory signals. The paraplegic
must have special toilet and washroom facilities and arrangements, while the
blind couldn't care- less where the mirror is located. For the persons in
the wheel chair and the mobile cripple, a site is best developed which is
level and without curbs and other abrupt changes. For the blind, large,
level, open plazas and other areas around and among buildings, without
discernible landmarks such as curbs and well-defined walks, can be traversed
only by dead reckoning.
To secure acceptance of the specifications by architects, builders, owners,
and operators, the National Society for Crippled Children and Adults and the
President's Committee on National Employ the Physically Handicapped Week
established steering committees in the various states. They, together with
others, put on an active, national campaign. As a result, remarkable
progress has been made in five years. Architectural barriers legislation has
been adopted in twenty-one states.118 A national commission on architectural
barriers to the rehabilitation of the handicapped was established in 1965 in
the Department of Health, Education, and Welfare to focus national attention
on the problem and to advise, consult, study, and demonstrate.119 The
relevant professions, industries, unions, and other interests have been made
acquainted with the

"0 Id. at § 2. i" Id. at § 2.6.
lis "Penn. Becomes 21st State To Pass Architectural Barriers Legislation."
Performance, Dec. 1965, p. 3. Available statutes are: Calif. Assembly
Concurrent Resolution No. 19 (196S Reg. Sess.); Conn. Public Act No. 216
(Feb. 196S, Spec. Sess.); Fxa. Stat. ch. 255.01, as amended by S.B. No. 109,
ch. 6S-493 (July 1, 1965); Bx. Rev. Stat. Ann. ch. Ill, § 11 (Smith-Hurd,
Supp. 196S); Iowa Code Ann. (Sen. File 352 Supp. 1965); Mass. Gen. Laws
Ann., ch. 149, § 44c (Supp. 1965); Minn. Stat. Ann. §§ 73.57-53.61 (Supp.
1965); Mont. Rev. Code Ann. §§ 69-3701 to 69-3719 (Supp. 1965); Neb. Sess.
Laws 1965, ch. 430; N.H. Rev. Stat. Ann; §§ 155.8-a, 8-b (Supp. 1965); N.
Mex. Stat. ch. 67, § 16-18 (Supp. 1965); NX>. Code ch. 48-02-18 (Supp.
1965); Ohio Rev. Code Ann. § 3781.111 (Supp. 1965) ; Okia. Stat. Ann. tit.
61, § 11 (Supp. 1965); Pa. Stat. Ann. §§ 1455.1-1455.4 (Supp. 1965); R.I.
Gen. Laws Ann. § 37-8-15 (Supp. 1965); S.C Code §§ 1-481 to 1-490 (Supp.
1965); Wis. Stat. Ann. §§ 101.305, 101.306 (Supp. 1965).
HO 79 Stat. 1282, 29 U.S.C §§ 31-33 (Supp. I, 1965).









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nature of the problem of architectural barriers and the relatively simple
and inexpensive design features required to reduce it.120 The levels of
attack have thus been private persuasion, official sponsorship, and, with
respect to public buildings and facilities, legislative mandate.
'The central feature of the state statutes is reliance on the work of the
American Standards Association. Indeed, the principal divergence among the
statutes is the extent to which they copy the specifications outright or
incorporate them by reference. A fairly typical statute—and, having been
passed in 1962, one of the earlier ones—is that of Massachusetts, which
provides that public buildings "shall conform with the booklet entitled
'American standard specifications for making buildings and facilities
accessible to, and usable by, the physically handicapped' approved by the
American Standards Association, Incorporated on October thirty-first,
nineteen hundred and sixty one."121 Montana122 and South Carolina,123 on the
other hand, practically enacted the booklet as it stood, even to the point
of including explanatory footnotes. The state statutes differ among
themselves as to the types of buildings and facilities covered, permissible
exceptions, methods and agencies of enforcement, and a requirement for
public hearing when administrative agencies are delegated authority to
establish standards by way of regulations. Most of the statutes accept a
variant of the formula used in Connecticut: "[A] 11 buildings and facilities
constructed, remodeled or repaired by the state or its agents or by any
political subdivision of the state or its agents when state funds or state
interest is involved."124 Wisconsin applies its requirements to "any public
buildings, including state-owned buildings or public housing projects . . .
and mercantile buildings. . . ,"125 The excepting clause provided in the
American Standard Specifications— "cases of practical difficulty,
unnecessary hardship, or extreme differ-

120	An example of voluntary compliance by those in charge of public
buildings is that of the University of California which has approved a plan
for all of its campuses to make them accessible to the disabled and usable
by them. See, e.g., University of Caixfornia, Berkeley, Architects and
Engineers Manual § 8.01, at 5-6 (1960); University of California, Building
Design Considerations for Physically Handicapped Students, May 24, 1963.
Indeed, with respect to at least one group of the disabled, the blind, there
have been special facilities for at least the past twenty-five years on the
Berkeley and Los Angeles campuses.
121	Mass Acts & Resolves 1962, ch. 662.
.   122 Mont. Rev. Code Ann. §§ 69-3701 to 69-3719 (Supp. 1965).
 123	s.C. Code §§ 1-481 to 1-490 (Supp. 1965).
 124	Conn. Public Act No. 216 (Feb. 1965, Spec. Sess.).
125	Wis. Stat. Ann. § 101.305 (Supp. 1965). Specifically excepts:
apartment houses, convents and monasteries, jails or other places of
detention, garages, hangers, hothouses, all buildings classified as
hazardous occupancies, and state buildings specifically built for field
service purposes, such as but not limited to conservation fire towers, fish
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ences"126—is generally liberalized in the state statutes to require only
"substantial conformity"127 or conformity "in so far as feasible and
financially reasonable."128 Little is said in most of the statutes about
enforcement. Usually the administrative officials responsible are identified
but not much more.129 Minnesota provides that construction or remodeling of
public buildings owned by the state "shall not be hereafter commenced ...
until the plans and specifications .. . have been approved by the fire
marshal."130 Wisconsin's provision is specific and drastic: "The owner of
any building who fails to meet the requirements of this section may be
required to reconstruct the same by mandatory injunction in a circuit court
suit brought by any interested person. Such person shall be reimbursed, if
successful, for all costs and disbursements plus such actual attorney fees
as may be allowed by the court."131

C. The Struggle for the Streets

"Public thoroughfares are for the beggar on his crutches as well as the
millionaire in his limousine."132 "The ordinary purpose of sidewalks and
streets includes their use by the blind, the very young and the aged, the
cripple and the infirm, and the pregnant woman. For such persons to use the
streets is not contributory negligence."133
Once the disabled do appear in a public place where, as it is said, they
have a right to be, what are the conditions of their presence? With what
freedoms and liabilities do these phrases endow them? What are their
responsibilities toward themselves, toward others, and of others toward
them? Is the right to use the streets the same as the right of reasonably
safe passage? If the disabled are liable for all acts or accidents
proximately caused by their disability, if public bodies and able- bodied
persons stand exactly in the same relationship to them as to

126 American Standards Ass'n, op. cit. supra note 103, at § 1.2. 12tn. Mex.
Stat. § 67-16-18 (B) (Supp. 1965).
128	0kla. Stat. Ann. tit. 61, § 11 (Supp. 1965). In Rhode Island the
administrators need only "take into consideration standards promulgated by
the American Standards Association . . .    R.I. Gen. Laws Ann. § 37-8-15
(Supp. 1965).
129	E.g., Mont. Rev. Code Ann. tit. 69-3719 (Supp. 1965); Neb. Sess.
Laws 1965, ch. 430; N.H. Rev. Stat. Ann. ch. 8-b (Supp. 1965). Okia. Stat.
Ann. tit. 61,512 (Supp. 1965); Pa. Stat. Ann. tit. 71, § 1455.3 (Supp.
1965); S.C. Code § 1-49 (Supp. 1965).
130	Minn. Stat. Ann. ch. 73-60 (Supp. 1965).
131	Wis. Stat. Ann. § 101.305(2) (Supp. 1965). For states requiring
public hearings before issuance of standards see, e.g., Wis. Stat. Ann. §
101.306 (Supp. 1965); Conn. Public Act. No. 216, § 2 (Feb. 1965, Spec.
Sess.).
i32\veinstein v. Wheeler, 127 Ore. 406, 413, 271 Pac. 733, 734 (1928),
rehearing denied, 135 Ore. 518, 296 Pac. 1079 (1931).
133 Garber v. City of Los Angeles, 226 Cal. App. 2d 349, 358, 38 Cal. Rptr.
157, 163 (1964), quoting David, Municipality Liability in Tort in
California, 7 So. Cal. L. Rev. 372, 452 (1934).








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able-bodied persons, if, in other -words, disability is not to be taken into
consideration for these purposes so as positively to protect the disabled
against major hazards if not minor harms—then the right to be in public
places is best described by Shakespeare:

And be these .juggling fiends no more believed That palter with us in a
double sense; That keep the word of promise to our ear, And break it to our
hope.134

This would indeed be requiring the blind man to see at his peril, something
that Oliver Wendell Holmes told us a long time ago is not to be done.135 In
these circumstances, every trip to the mailbox or store, every stroll in the
sun, every congregation with one's neighbors, every catching of a bus to go
to school or work—all the ordinary and routine transactions of daily life
safely conducted by the rest of the community in public places as a matter
of course—would be conducted by the disabled at great hazard; such great
hazard in fact as to encourage, if not to make necessary, their
custodialization. To live in the world presupposes progress toward a goal of
integration.
The judicial answers to the questions posed above have come in the form of
special substantive rules on the disabled collected under the rubric of the
law of negligence. The courts and textwriters prefer to say that the
standards are not special or different but one and the same for
everybody.138 It is the circumstances to which the standards apply that are
special and different, a mode of expression giving a sense of rhetorical
integrity. However, the differences are important, whether they are said to
be in the standards, as in the case of children,137 or in the circumstances
to which the standards apply, as in the case of the disabled.188
Negligence first appeared as an independent tort or civil wrong for which
the courts would allow an action for damages in the 19th century at a time
when the industrial revolution, and particularly the develop
13*
Macbeth, Act V, scene viii, lines 19-23.
135 Holmes, The Common Law 109 (1923 ed.).
i36Fenneman v. Holden, 75 Md. 1, 22 Atl. 1049 (1891); Jakubiec v. Hasty, 337
Mich. 20S, 59 N.W.2d 38S (19S3); Davis v. Feinstein, 370 Pa. 449, 88 A.2d
695 (1952); Fletcher v. City of Aberdeen, 54 Wash. 2d 174, 338 P.2d 743
(19S9). 2 Harper & James, Torts § 16.7 (1956); Prosser, Torts § 32, at 155
(3d ed. 1964); Restatement (Second), Torts § 283c (1964); 38 Am. Jur.
Negligence § 210 (1941).
 137	in 1841, in the case of Lynch v. Nurdin, L.R., 1 Q.B. 29 (1841), the
Queens Bench laid down the basic doctrine in respect to the standard of care
required of children—it was that of a reasonably prudent child of its years
and development, not that of a reasonably prudent adult.
 138	Fleming, Torts 249 (3d ed. 1965); 2 Harper & James, op. cit. supra
note 136, § 16.7, at 923-24; Prosser, op. cit. supra note 136, § 32, at
154-57; Restatement (Second), Torts § 283c (1964),







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ment of the railroads, was beginning to produce a heavy crop of accidental
injuries to the person.139 The law of negligence is still true to its
origins and is dominated today by the same sorts of factors, multiplied a
thousandfold by the accident-producing capacity of modern industry and urban
life, and above all, by conditions of automobile traffic. Not only are these
very factors the causes of a great deal of disability— though disease is
still the major cause—but they constitute and give rise to new and
ever-increasing hazards of life for those already disabled from whatever
cause.
Summarizing the generally accepted doctrine, the second Restatement of the
Law of Torts defines negligence as "conduct which falls below the standard
established by law for the protection of others against unreasonable risk of
harm."140 The risk of harm is to be judged in the light of the likelihood
that the harm will occur as well as its extent and severity. The risk, so
judged, is then to be balanced against the character and importance of the
conduct creating the risk and the feasibility and burden of providing
protection against it.141 The risk of harm is unreasonable if the first
factors outweigh the second and the conduct which creates it is then said to
be lacking in "due care." This is conduct in which the reasonable man of
ordinary prudence does not engage. It is by this general formula, applied as
the courts say to the special circumstances of the physically disabled, that
the judges have sought to define the nature and scope of their right to live
in the world. The judges pose as the critical question alike for those who
create the risk and the disabled who run it: Would a reasonable man of
ordinary prudence in like circumstances have done either?142 It is only if
the disabled plaintiff meets this standard of conduct and the defendant does
not that the cost of injuries will be placed upon the latter. Otherwise, it
will be allowed to lie where it falls.
If the disability is an element in the circumstances in which the disabled
person finds himself, and if all elements in the circumstances are to be
given their proper weight by the ordinarily prudent man in regulating his
conduct, then a person's disability is to be taken into considerate Fleming,
op. tit. supra note 138, at 107-08; 2 Harper & James, op. tit. supra note
136, § 12.3, at 751-52; Prosser, op. cit. supra note 136, § 28, at 142-43.
"0 Restatement (Second), Torts § 282 (1964). See also Fleming, op. cit.
supra note 138, at 110; 2 Harper & James, op. cit. supra note 136, at §§
16.1, 16.2; Prosser, op. cit. supra note 136, at §§ 30, 31.
"I United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947);
Chicago, B. & Q. R.R. v. Krayenbuhl, 65 Neb. 889, 91 N.W. 880 (1902);
Prosser, op. tit. supra note 136, at 151-52; Restatement (Second), Torts §§
291-93 (1964).
"2Prosser, op. cit. supra note 136, at 154; Restatement (Second), Torts §
283 (1964).

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tion in determining liability for injuries. In this proposition, English and
American courts today unanimously agree.143 Dean Prosser summarizes the
conclusion by saying that the disabled person is entitled "to have allowance
made by others for his disability"; and he in turn, must act reasonably "in
the light of his knowledge of his infirmity .. . treated . . . merely as one
of the circumstances under which he acts."144 "Allowance made . . . for
disability"; how, to what extent, in which circumstances, by whom? As to
these issues, the courts are in strong disagreement. The disabled person,
says Dean Prosser, "cannot be required to do the impossible by conforming to
physical standards which he cannot meet."14" Quite so! But if the right to
live in the world consists only of exemption from this requirement, its
proclamation may be a cruel hoax. To what requirements may they be
subjected: to sally forth only in the care of an attendant? To use a dog as
guide? To carry a cane, and if so, of any particular sort, and to be
employed in any particular way? To travel only in familiar streets and
places? Not to enter streets and places known to be defective or where work
is being done? Not to enter streets and places possibly presenting
particular traffic hazards? To proceed at his peril, because however
carefully he may travel others need not anticipate his presence and take
precautions accordingly?
The courts are divided as to the answers to each and every one of these
questions; and the rhetoric is even more varied than the answers. The
majority of courts say that it is not negligence per se for a blind man to
walk the streets without a companion or attendant;140 others that he may do
so only in certain circumstances.147 Some say that it is contributory
negligence as a matter of law to travel without dog, cane, or

143 e.g., Muse v. Page, 125 Conn. 219, 4 A.2d 329 (1939) ; Shields v.
Consol. Gas Co., 193 App. Div. 86, 183 N.Y. Supp. 240 (Sup. Ct. 1920); Cook
v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955); Weinstein v.
Wheeler, 127 Ore. 406, 271 Pac. 733 (1928), rehearing denied, 135 Ore. 518,
296 Pac. 1079 (1931); Davis v. Feinstein, 370 Pa. 449, 88 A.2d 695 (1952);
Smith v. Sneller, 345 Pa. 68, 26 A.2d 452 (1942); Fletcher v. City of
Aberdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959); Haley v. London Elec. Bd.,
[1965] A.C. 778 (1964).
14* Prosser, op. cit. supra note 136, § 32, at 155; Fuming, op. cit. supra
note 138, at 116-17, 162-63; 2 Harper & James, op. cit. supra note 136, §
16.7, at 920-21.
148 Prosser, op. cit. supra note 136, § 32, at 155. See also Restatement
(Second), Torts § 283c (1964).
146-E.g., Town of Salem v. Goller, 76 Ind. 291, 292 (1881); Balcom v. City
of Independence, 178 Iowa 685, 696, 160 N.W. 305, 310 (1916); Kaiser v. Hahn
Bros., 126 Iowa, 561, 563, 102 N.W. 504, 505 (1905); Neff v. Town of
Wellesley, 148 Mass. 487, 495, 20 NJE. Ill, 113 (1889); Smith v. Wildes, 143
Mass. 556, S59, 10 N.E. 446, 448 (1887); Hestand v. Hamlin, 218 Mo. App.
122, 127, 262 S.W. 396, 397 (1924) ; Sleeper v. Sandown, 52 NJS. 244, 251
(1872); Davenport v. Ruckman, 37 N.Y. 568, 568-73 (1868); Fletcher v. City
of Aberdeen, 54 Wash. 2d 174, 178, 338 P.2d 743, 745 (1959); Masterson v.
Lennon, 115 Wash. 305, 308, 197 Pac. 38, 39 (1921).
147 e.z., Florida Cent. RJR. v. Williams, 37 Fla. 406, 20 So. 558 (1896).






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companion;148 others, that the failure to use one or more of these travel
aids presents a question for the jury as to whether due care was
employed.149 No courts say that a blind man may not, when taking the proper
precautions, enter unfamiliar territory; most courts, however, emphasize the
plaintiff's knowledge of the surroundings and the frequency of his
presence.150 Some say that the plaintiff's knowledge that the streets are or
may be defective or dangerous creates a kind of assumption of risk;151
others, that in the circumstances, the disabled person may proceed but must
do so with due care in the light of his knowledge.152 The latter rule is
also applied by some courts to blind persons in railway depots, at railway
street crossings, and like places of similar danger,153 while others say
that it is gross negligence for blind persons to be in such places alone.154
Some courts say that the disabled may proceed upon the assumption that the
streets and highways are kept in a reasonably safe condition, and that
cities and abutting property owners must expect the disabled to be abroad in
the land and accordingly must take precautions necessary to warn or
otherwise protect them.155 Others say that those who create, maintain, or
tamper with the streets and public passageways are only under a duty to
safeguard the able-bodied pedestrian.156
No courts have held or even darkly hinted that a blind man may rise

"8 Id. at 419-20, 20 So. at 561-62.
"9 Smith v. Sneller, 345 Pa. 68, 12, 26 A.2d 452, 454 (1942); Fraser v.
Freedman, 87 Pa. Super. 454, 457 (1926).
150 E.g., Balcom v. City of Independence, 178 Iowa 685, 696, 160 N.W. 305,
309 (1916); Chesapeake & Potomac Tel. Co. v. Lysher, 107 Md. 237, 240, 68
Atl. 619, 621 (1908); Neff V. Town of Wellesley, 148 Mass. 487, 489, 20 NJ3.
Ill (1889); Smith v. Wildes, 143 Mass. 556, 559, 10 NJS. 446, 448 (1887);
Hestand v. Hamlin, 218 Mo. App. 122, 127, 262 S.W. 396, 397 (1924) ; Sleeper
v. Sandown, 52 NJS. 244, 252 (1872); Davenport v. Ruckman, 37 N.Y. 568, 573
(1868).
101 E.g., Garbanati v. City of Durango, 30 Colo. 358, 360, 70 Pac. 686
(1902); Cook v. City of Winston-Salem, 241 N.C. 422, 430, 85 S.E.2d 696,
701-02 (1955).
 152	E.g., Hestand v. Hamlin, 218 Mo. App. 122, 128, 262 S.W. 396, 398
(1924); Marks' Adm'r v. Petersburg R. Co., 88 Va. 1, 13 SJ3. 299 (1891).
 153	See, e.g., Farley v. Norfolk & W. Ry., 14 F.2d 93 (4th Cir. 1926);
Rosenthal v. Chicago & AJRJR., 255 I'll. 552, 556, 99 N.E. 672, 672-73
(1912); Lortz v. New York Cent. & H.R.R., 7 App. Div. 515, 522, 40 N.Y.
Supp. 253, 257 (1896).
 154	Florida Cent. R.R. v. Williams, 37 Fla. 406, 419, 20 So. 558, 562
(1896).
I55£.gl) Balcom v. City of Independence, 178 Iowa 685, 693, 160 N.W. 305,
308 (1916); Rock v. American Constr. Co., 120 La. 831-33, 45 So. 741-42
(1908); Sleeper v. Sandown, 52 N.H. 244, 245 (1872); Shields v. Consol. Gas
Co., 193 App. Div. 86, 90, 183 N.Y. Supp. 240, 242-43 (1920); Davenport v.
Ruckman, 37 N.Y. 568-73 (1868); Fletcher v. City of Aberdeen, 54 Wash. 2d
174, 179, 338 P.2d 743, 746 (1959); Masterson v. Lennon, 115 Wash. 305, 308,
197 Pac. 38, 39 (1921); Short v. City of Spokane, 41 Wash. 257, 261-62, 83
Pac. 183, 185 (1906); Haley v. London Elec. Bd, [1965] A.C. 778, 790 (1964).
158 Hestand v. Hamlin, 218 Mo. App. 122, 127, 262 S.W. 396, 397 (1924);
Carter v. Village of Nunda, 55 App. Div. 501, 504, 66 N.Y. Supp. 1059, 1061
(1900); Cook v. City of Winston-Salem, 241 N.C. 422, 428, 85 SJ3.2d 696, 700
(1955).






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in the morning, help get the children off to school, bid his wife goodby,
and proceed along the streets and bus lines to Ms daily work, without dog,
cane, or guide, if such is his habit or preference, now and then brushing a
tree or kicking a curb, but, notwithstanding, proceeding with firm step and
sure air, knowing that he is part of the public for whom the streets are
built and maintained in reasonable safety, by the help of his taxes, and
that he shares with others this part of the world in which he, too, has a
right to live. He would then be doing what any reasonable, or prudent, or
reasonably prudent blind man would do, and also what social policy must
positively foster and judges in their developing common law must be alert to
sustain.
What were these blind plaintiffs doing in the streets and highways when they
were injured? The answer is very instructive. They were doing what other
people do who live in the world. In the two leading Washington cases,157
they were going to and from work as piano tuners; in Massachusetts, a piano
tuner had stopped at a store, made a purchase, and was going on down the
street;158 in Pennsylvania, a door-to-door salesman of small household items
was in course of canvassing houses;160 in New York, a door-to-door salesman
was returning home from the meat market down the street;160 in London, a
telephone operator was following his daily routine of going to work;161 in
City of Independence, Iowa, a businessman was on his usual path to and from
the business part of town;162 in New Hampshire, a farm hand was passing
along a familiar road, "a good man to hire . . . for . .. chopping wood,
felling trees, mowing, reaping, threshing grain, digging potatoes, planting
and hoeing, although with difficulty the first time hoeing corn";103 in Town
of Spirit Lake, Iowa, the plaintiff was taking the only available walk to
church;104 in North Carolina, the plaintiff was making a Sunday afternoon
visit to a friend;165 in Vermont, the plaintiff, riding along on a jaunt in
a wagon with another fellow and two women, got out on the public highway in
the dark of night to urinate.166 Moreover, almost all of these plaintiffs
had one

 157	Fletcher v. City of Aberdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959);
Masterson v. Lennon, 115 Wash. 305, 197 Pac. 38 (1921).
 158	Smith v. Wildes, 143 Mass. 556, 10 N.E. 446 (1887).
 159	Smith v. Sneller, 345 Pa. 68, 26 A.2d 452 (1942).
160	Shields v. Consol. Gas Co., 193 App. Div. 86, 183 N.Y. Supp. 240
(1920). "I Haley v. London Elec. Bd., [1965] A.C. 778 (1964).
i62Balcom v. City of Independence, 178 Iowa 685, 160 N.W. 305 (1916).
163	Sleeper v. Sandown, 52 NJH. 244, 245 (1872).
 164	Yeager v. Town of Spirit Lake, 115 Iowa 593, 88 N.W. 1095 (1902).
 165	Cook v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955).
 166	Glidden v. Town of Reading, 38 Vt. 52 (1865). In Missouri, the
restaurant operator was walking to other parts of town for supplies as he
usually did several times each day. Hestand v. Hamlin, 218 Mo. App. 122, 262
S.W. 396 (1924). In the Glenwood, Iowa case,







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of the "common, well-known, compensatory devices for the blind ... a cane, a
seeing-eye dog, or a companion."167
The discussion in the cases has revolved around these principal topics: an
analogy between the blind man in the daytime and the seeing man at night;
the likelihood that the disabled will come by and be injured; contributory
negligence of or the precautions taken or to be taken by the disabled person
to prevent injury in the light of his disability; the practicability and
cost to the city, contractor, or property owner of reducing the risk to
reasonable proportions.

1. The Analogy

The early leading opinions dealing with the blind and the near-blind are
preoccupied with an analogy built on sighted persons' conceptions of
blindness: Blindness is shutting off the vision as by a blindfold or a
perfectly dark night. This being so, and assuming the right of the blind to
travel the streets at all, should not the law assimilate their daytime
situation to that of the seeing man at night? In the early and much quoted
New York case of Davenport v. Ruckman,168 the court said:

The streets and sidewalks are for the benefit of all conditions of people,
and all have the right, in using them, to assume that they are in good
condition, and to regulate their conduct upon that assumption. A person may
walk or drive in the darkness of the night, relying upon the belief that the
corporation has performed its duty and that the street or the walk is in
safe condition. He walks by a faith justified by law	169

This was the case of a person with some sight who, traveling along the walk
in the daytime, had fallen into an unguarded cellarway. Four years later,
the Supreme Court of New Hampshire dealt with the case of a totally blind
person who, also traveling in the daytime, had fallen off a bridge fourteen
to sixteen feet wide, the railing on one side of which was no longer
present. It is immaterial, the plaintiff's attorney argued, "whether the
accident happened for want of light or want of sight."170

the plaintiff "helps his wife in laundry work for their neighbors, and has
on occasion received aid from the county . . . ." The court thought it could
"fairly assume that he felt the hurt of his bruises . . . none the less
keenly than he would had his balance in [the] bank been larger." Hill v.
City of Glenwood, 124 Iowa 479, 48S, 100 N.W. 522, 524 (1904). In Maryland,
the man who sewed brooms was leaving the sheltered workshop at the Maryland
School for the Blind and returning to his living quarters. Chesapeake &
Potomac Tel. Co. v. Lysher, 107 Md. 237, 68 Atl. 619 (1908). In New York,
the store owner was returning home from business, crossing a creek in a
scow. Harris v. Uebelhoer, 75 N.Y. 169 (1878).
187 E.g., Smith v. Sneller, 345 Pa. 68, 72, 26 A.2d 452, 454 (1942).
I6837 N.Y. 568 (1868).
169 Id. at 573.
«o Sleeper v, Sandown, 52 N-H, 244, 250 (1872).








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Quite so, said the court: "Blindness of itself is not negligence. Nor [is]
passing upon the highway with the sight of external things cut off by
physical incapacity of vision . . . any more than passing upon the highway
when the same things are wholly obscured by the darkness of night."171
"[T]his plaintiff, although blind," the court added, "had the same right to
assume the existence of a rail on each side that any traveller, passing
either in the daytime or in the night-time would have... ,"172
In the 1916 Iowa case, which has led the way for many states, the analogy of
blindness to lack of light was given great weight in the case of a totally
blind man who, again traveling in the daytime, fell into an unguarded
seven-foot deep watermain ditch as he crossed the street.178 The city was
bound to make it safe for the sighted to pass at night when the sighted are
blind. "[R]equiring a light for him who can see when there is a light proves
that there is a duty to protect those who for any reason cannot see ... ,"m
While this analogy is basically weak in portraying as the same the travel
problems of the blind and the sighted in the dark, it did prove a valuable
starting point for the courts in seeing that the duty of the defendant is
not confined to the able-bodied. Its logical, or perhaps more accurately,
its psychological, role was thus historic in the process of imposing upon
cities and abutting property owners an obligation to maintain the streets,
highways, bridges and other public places in a condition safe for the
disabled traveler—and this in an age when the courts were acutely concerned
about keeping in hand judgments of plaintiff- minded juries in the interests
of free enterprise and unencumbered industrial development.
While utilizing the analogy for this basic function, and moving, one feels,
from humanitarian rather than policy considerations, the courts were not
hindered by its difficulties or misled into many of its bypaths. If the
daytime care the city owed the blind was the same as the nighttime care it
owed the sighted, then: providing a lamp should amply warn or illuminate;
the use of compensatory travel aids would not be emphasized, unless
perchance the sighted at night, in view of their unfortunate affliction,
were to be required, on threat of contributory negligence, to use one of
those well-known compensatory devices for men in want of light, such as a
cane, a seeing-eye cat, or a blind attendant.175

"I id. at 251. «2/(Z. at 252.
"SBalcom v. City of Independence, 178 Iowa 685, 160 N.W. 305 (1916). "4 Id.
at 691, 160 N.W. at 308.
"SBussell v. City of Fort Dodge, 126 Iowa 308, 101 N.W. 1126 (1905).








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At night the blind and the sighted would be put upon an identical footing.
The fact that lanterns placed about an excavation will not make the passage
safe for a blind man, said the Iowa court is "adventitious." "Concede that
there must be a light for those who have eyesight, when without the light
the eyesight would be no protection, and it follows that there is a duty to
guard those who cannot see, though a light be furnished, by guarding them
with that which will be as much a protection to them as is the lamp to one
whose inability to see is due to the darkness of the night."178 So the
differences do matter, too, and not just the similarities or supposed
similarities.
The blind man must take his compensatory devices and cautions into the
night, though the sighted are not expected to use them. Although the blind
man in the road could not see, and, because the night was dark, could not be
seen by the driver of a team bearing down on him, great emphasis was placed
by the Vermont Supreme Court on his use of a cane in escaping from danger by
safely finding the edge of the road and then falling into the ditch.177 He
had a right to assume, said the court, that the road was safe in its
"surface, margin and muniments."178 If plaintiff had been sighted,
presumably he would have had the same right to a safe ditch but he would
have been free to find it in whatever way a sighted man might in the light
of all the circumstances. In another nighttime accident involving a blind
man rowing across a creek, the New York court "assumed" that the creek was a
public highway, "as much open to the use of a blind man as one having
eyesight."179 Whether sighted in the night or blind, a person "must be more
cautious. He must bring about him greater guards, and go more slowly and
tentatively than if he had his eyesight, or the light of day shone upon
him."180 Notwithstanding these firm declarations, the court in this case
made much of the fact that the blind man had his sighted wife in the boat
with him and that the night was clear. Neither enabled him to avoid a
collision with a tug boat though both together had a lot to do with his
avoiding the defense of contributory negligence.
Some courts have never accepted the basic conclusion about the extent of the
defendant's duty, with or without the use of the analogy. In the 1955 case
of Cook v. City of Winston-Salem,181 the North Carolina Supreme Court held
that the city and its contractors were under no duty

lTGBalcom v. City of Independence, 178 Iowa 685, 691, 160 N.W. 305, 308
(1916). "7 Glidden v. Town of Reading, 38 Vt. S2, S3, 57 (1865). "8Ji. at
57.
Harris v. Uebelhoer, 75 N.Y. 169, 175 (1878). 180 ibid.
"1241 N.C. 422, 85 S.E.2d 696 (1955).








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to place a signal or guard at a dropoff from the path to the street
resulting from an incompleted repaving operation "during the daytime, when
it was plainly visible."1*2

2. Likelihood of Harm

Whether the risk of harm created by the conduct of the defendant is
unreasonable depends in part on the likelihood that it will occur. If the
likelihood is very slight, even though the potential harm be quite serious,
the defendant is not charged with responsibility for safeguarding persons
against it. This manner of stating the duty of the defendant, increasingly
popular today, is not uniformly employed in the cases. Since there is a
judicial tendency to describe the accident in terms of the actions of the
plaintiff and to focus particularly on questions of contributory negligence,
the courts often speak of the right of the plaintiff to proceed upon the
assumption that the streets and highways will be maintained in a reasonably
safe condition, leaving the duty of the defendant to maintain them implicit
or expressed in a subordinate way.188
Another mode of stating the duty of the defendant is as the Iowa court did:
The due care obligations of the plaintiff and the defendant are correlative.
The blind man must use more precautions because he is blind; the city must
act in the light of his right to be in the streets and in recognition of his
disability.184 The Iowa court also suggested a stricter standard: The
wrongdoer need not anticipate the consequences of his actions; that they did
in fact occur is sufficient. In this view, it would not matter that "no
blind man had ever before used a walk in the town."185 In any, event, the
particular plaintiff had used these very streets for ten years so the city
could not claim ignorance of his presence. In 1905, the Washington Supreme
Court approved this instruction: "The

 182	id. at 428, 85 S.E.2d at 700.
 183	E.g., Town of Salem v. Goller, 76 Ind. 291, 292 (1881); Smith v.
Wildes, 143 Mass. 556, 559, 10 N.E. 446, 448 (1887); Sleeper v. Sandown, 52
NJH. 244, 251-53 (1872); Shields v. Consol. Gas Co., 193 App. Div. 86, 90,
183 N.Y. Supp. 240, 242-43 (1920); Harris v. Uebelhoer, 75 N.Y. 169, 174-77
(1878); Davenport v. Ruckman, 37 N.Y. 568, 573 (1868); <51idden v. Reading,
38 Vt. 52, 57 (1865).
The right of reliance on a safe street or highway antedates the cases
announcing the right of the disabled to be upon the streets and highways.
See, e.g., Thompson v. Bridge- water, 24 Mass. (7 Pick.) 187 (1829). The
first American cases dealing with the right of the blind were handed down in
the 1860's. Winn v. City of Lowell, 83 Mass. 177, 189 (1861) j Davenport v.
Ruckman, 37 N.Y. 568, 573 (1868); Glidden v. Reading, 38 Vt. 52 (1865). An
English court in Boss v. Litton, [1832] 5 C. & P. 407, 409, 24 E.C.L. 628,
630 (1831), first declared that "all persons, paralytic as well as others,
had a right to walk in the road, and were entitled to the exercise of
reasonable care on the part of persons driving carriages along it."
i84Balcom v. City of Independence, 178 Iowa 685, 691-92, 160 N.W. 305, 308
(1916). 185 id. at 696, 160 N.W. at 309.








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city is chargeable with knowledge that all classes of persons, including the
healthy and diseased and lame, constantly travel its streets and
sidewalks."186 This doctrine was specifically applied to the blind in a
later case.187 Foreseeability is a term used by some courts to cover the
presumption that the defendant is on notice that disabled persons are likely
to happen along.188
The statement by an English author that "a century ago there was no rule
either recognizing or refusing to recognize a duty of care toward blind
pedestrians because they were rarely seen in the streets"189 is inaccurate
as to the facts in England and America and as to the law in America.180 One
century ago, two centuries ago, five centuries ago, the blind were notorious
frequenters of the streets of the towns, carrying out their historic role,
and often their privileged status, as beggars.191 What was rare was a blind
man moving about the streets for some other purpose, and especially for the
regular activity of going to work as the plaintiff in Haley v. London Elec.
Bd. was doing.192 Indeed, the number of cases getting to appellate courts by
and about the turn of the century involving blind or nearly blind plaintiffs
is in many ways surprising. While some blind individuals were active and
mobile, this course of conduct was not encouraged by governmental policy, by
community attitudes, by the mores of the times, or by the public or private
programs established for the benefit of the blind. Blind children attended
segregated residential schools, if any, where classes and the activities of
daily

188 Short v. City of Spokane, 41 Wash. 257, 262, S3 Pac. 183, 18S (190S).
 187	F]etcher v. City of Aderdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959).
In Missouri it was held for a time that the city's duty to keep its
sidewalks in repair only required it "to use ordinary care to maintain its
streets in a reasonably safe condition for general traffic in all the usual
and ordinary modes of travel." Bethel v. St. Joseph, 184 Mo. App. 388, 394,
171 S.W. 42, 44 (1914). See also Wilkerson v. City of Sedalia, 20S S.W. 877
(Mo. 1918). The Missouri Supreme Court overruled these cases in favor of the
proposition that the duty of the city extended to providing reasonably safe
streets for all classes of pedestrians including the disabled. Hunt v. St.
Louis, 278 Mo. 213, 211 S.W. 673 (1919). See also . Bianchetti v. Luce, 222
Mo. App. 282, 290, 2 S.W.2d 129, 133 (1928); Hanke v. St. Louis, 272 S.W.
933 (Mo. 1925).
 188	Kennedy v. Cohn, 73 Pa. D. & C. 544, 548 (CP. 1950); Clawson v.
Walgreen Drug Co., 108 Utah 577, 583, 162 P.2d 759, 762 (1945); Haley v.
London Elec. Bd., [1965] A.C. 778, 791 (1964).
i8»Dias, A Hole in the Road, 73 The Listener 292, 294 (1965). a
is" See, e.g., Winn v. City of Lowell, 83 Mass. (1 Allen) 177 (1861);
Sleeper v. Sandown, 52 N.H. 244 (1872); Davenport v. Ruckman, 37 N.Y. 568
(1868).
lOitenBroek, California's Welfare Law—Origins and Development, 45 Caiif. L.
Rev. 241, 252 (1957); Nueva RECoprtAcroN, bk. I, tit. XTI, law 15 (1567).
See, e.g., Novisima Recomlacion, bk. VET, tit. XXXTX, law 8 (1805).
192 [1965] A.C. 778 (1964). See text accompanying notes 200-09 infra, for a
discussion of this case.








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life were all conducted within the confines of the institution.103 In adult
life, many of the blind were cared for and custodialized by their families
or worked in sheltered shops attached to institutional living arrangements,
often the residential school.194 (Homes provided for the blind and
almshouses cared for the aged.105) Yet even at this time, as we have just
shown, some blind persons were abroad in the land and some courts were
proclaiming their right to be there and imposing on public bodies the duty
to protect them in the safe exercise of it.
Today the picture is quite different. Blind children and youths are
attending public schools and colleges, making their way to and from them
alone. Blind and otherwise disabled adults are encouraged in many ways to
live active lives whether or not they are able to secure gainful employment:
by financial aid programs which make this possible;100 by case work services
in the welfare system;107 by home teacher programs throughout the country
designed,198 among other things, to teach blind persons to travel alone; by
orientation and rehabilitation programs which regard mobility as a must.189
The total number of blind people in a

193 See generally Fareeix, The Story of Blindness (19S6); Frampton &
Kearney, The Residential School (1953); French, From Homer to Helen Keller
(1932); Richards, Samuel Gridley Howe (1935); Richards, Letters and Journals
or Samuel Gridley Howe (1909).
is* See generally Chouinard, Skeltered Workshops—Past and Present, paper
read at the Fifth Atlantic City Rehabilitation Conference, 1957; Chouinard &
Garrett, Workshops jor the Disabled: A Vocational Rehabilitation Resource,
TT.S. Dep't of Health, Educ. & Welfare, Office of Vocational Rehabilitation
(Rehabilitation Services Ser. No. 371); French, op. cit. supra note 193. In
Chesapeake & Pacific Tel. Co. v. Lysher, 107 Md. 237, 68 Atl. 619 (1908),
the blind plaintiff when injured was leaving a sheltered shop located at the
Maryland School for the Blind where he had worked for four years after
graduating from the school. Samuel Gridley Howe, famed pioneer in education
of the blind and other educational projects, started the first sheltered
shop in the country in connection with the New England Asylum for the blind
in 1840. The men who worked in it lived at the asylum until 1880. Farrell,
op. cit. supra note 193, at 68, 159-60.
195 tenBroek, California's Dual System of Family Law: Its Origin,
Development, and Present Status, 16 Stan. L. Rev. 900, 931 (1964).
19649 Stat. 645 (1935), as amended, 42 U.S.C. §§ 1201-06 (1964). See also
Cal. Welfare & Inst'ns Code §§ 13000-102 (California's Program for Aid to
Potentially Self- Supporting Blind).
76 Stat. 186 (1962), 42 U.S.C. §§ 1201, 1351 (1964).
198 See, e.g., Cal. Educ. Code § 6209.
18d Over twenty public and private educational institutions throughout the
country give mobility training. This does not include dog-guide centers, of
which there are perhaps a dozen, or training offered by all residential
schools or most resource classes in public schools. At least two groups are
operating in California under grants from the Federal Department of Health,
Education, and Welfare related to public schools—one in Alameda-Contra Costa
County and one in Los Angeles County. There are many like projects
country-wide. In two universities, West Michigan University located at
Kalamazoo, Michigan, and Boston College in Boston, Massachusetts, mobility
teacher training courses are offered. See also Rives, The Blind and Today's
Jobs, Rehabilitation Record, March-April, 1965, p. 6.







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community has increased with the general growth in population. But a far
greater precentage of them than ever before is out in the community.
In the recent Haley case200 decided by the Judicial Committee of the House
of Lords, the foreseeability doctrine was thoroughly explored. Reliance was
placed on common knowledge, government statistics, and. the judicially
noticeable fact that "we all are accustomed to meeting blind people walking
alone with their white sticks on city pavements."201 In the London area at
the time there were 7,321 registered blind people, and in Great Britain as a
whole, 107,000, or about 1 in every 500.202 In the United States the figures
are comparable.203 Moreover, the growing use of the white cane has increased
the visibility and conspicuousness of the blind part of the population. One
would suppose that no court in the land would any longer hear a city, from
the greatest metropolis to the least village, maintain that it could not be
expected to anticipate that numbers of disabled persons, including blind,
would pass that way, unattended, and in the free exercise of their right to
be in the streets and highways. That the duty of providing suitable warning
or protection might still not be imposed, as in North Carolina,204 can rest
only on a policy determination, and not on the defendant's claimed lack of
knowledge. That policy determination is one contradicting the policy
judgment of much of the rest of society.
The House of Lords in Haley205 carefully avoided all policy questions and
commitments. It merely insisted that the courts recognize the existing fact,
a partial and grudging adaptation of the law to contemporary needs.206 "No
doubt there are many places open to the public," said Lord Reid, "where for
one reason or another one would be surprised to see a blind person walking
alone but a city pavement is not one of them. And a residential street
cannot be different from any other. The blind people we meet must live
somewhere and most of them probably left their homes unaccompanied."207
Cities must be charged with this common knowledge and placed under a duty of
warning or other protection. "If it be said that your Lordships are making
new law," wrote Lord Ever- shed, "that is only because, whatever may have
been the facts and circumstances reasonably to be contemplated a hundred
years or more

 200	Haley v. London Elec. Bd., [1965] A.C. 778 (1964).
 201	Id. at 791.
 202	u. at 807.
 203	Estimated at between 350,000 to 400,000. Hurlin, Estimated
Prevalence of Blindness in the United States and in Individual States, 32
Sight Saying Rev. 4 (1962).
 204	Cook v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955).
205	Haley v. London Elec. Bd., [1965] A.C. 778 (1964). 206/&&; See
Eeemhto, Torts 162-63 (3d ed. 1965). 20t [1965] A.C. at 778, 791.







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ago, at the present time it must be accepted as one of the facts of life
that appreciable numbers of blind persons, having had the requisite
training, are capable of using or use in fact public footpaths such as that
in Charleton Church Lane and that accordingly their presence upon such
.footpaths cannot reasonably be disregarded or left out of account by those
undertaking work of the character being in the present case done by the
respondent board."208 In overruling the 1950 leading case,200 the Lords said
they were merely distinguishing it and thereby allowed some dangerous
doctrine to remain unrepudiated. The law, lagging far behind social
developments, was merely catching up with what blind people were actually
doing. The Lords were not implementing the public policy of integration, a
policy which in large part accounted for so many blind people being in the
streets and which made this decision necessary.

3. Contributory Negligence
Doctrines of contributory negligence are variously described as harsh,
illogical, and disappearing 210 Such doctrines have been particularly rife
in the disabled cases. Here misconceptions as to the nature of disability
have added to the general confusion and there is little evidence that these
doctrines are disappearing. Some rhetorical regularity is being achieved as
the courts gradually are eliminating talk of a higher standard of care
imposed on the disabled person by reason of his disability,211 and are
speaking instead of a universal duty of ordinary care requiring the disabled
person, by reason of his disability, to use greater efforts to avoid
hazards, to take greater precautions, to be more keenly watchful by the
fuller use of remaining senses, or otherwise to seek to compensate for his
disability212 This rhetorical regularity, however, accomplishes no sub
208
Id. at 800-01.
soopritchard v. Post Office, 114 J J?. 370 (CA. 19S0).
 210	Fleming, op. at. supra note 206, at 224-25; 2 Harper & James, Torts
§ 22.3 (1956); Prosser, Torts § 64 (3d ed. 1964).
 211	See, e.g., Winn v. City of Lowell, 83 Mass. (1 Allen) 177, 180
(1861); Karl v. Juniata County, 206 Pa. 633, 637-38, 56 Atl. 78, 79 (1903).
 212	Garber v. City of Los Angeles, 226 Cal. App. 2d 349, 358, 38 Cal.
Rptr. 157, 163 (1964) ; Muse v. Page, 125 Conn. 219, 223, 4 A.2d 329, 331
(1939) ; Balcom v. Independence, 178 Iowa 685, 692, 160 N.W. 305, 308
(1916); Kaiser v. Hahn Bros., 126 Iowa 561, 564, 102 N.W. 504, 506 (1905) ;
Hill v. City of Glenwood, 124 Iowa 479, 481-82, 100 N.W. 522, 523 (1904);
Gill v. Sable Hide & Fur Co., 223 Ky. 679, 680, 4 S.W.2d 676, 677 (1928);
Chesapeake & Potomac Tel. Co. v. Lysher, 107 Md. 237, 241, 68 Atl. 619, 622
(1908); Keith v. Worcester Street Ry., 196 Mass. 478, 482-83, 82 N.E. 680-81
(1907); Neff v. Town of Wellesley, 148 Mass. 487, 495, 20 NJE. Ill, 113
(1889) ; Sleeper v. Sandown, 52 NIL 244, 251 (1872); Shields v. Consol. Gas
Co., 193 App. Div. 86, 90, 183 N.Y. Supp. 240, 242 (1920); Carter v. Village
of Nunda, 55 App. Div. 501, 504, 66 N.Y. Supp. 1059,1061 (1900) ; Kennedy v.
Cohn, 73 Pa. D. & C. 544, 552 (CJ. 1950); Clawson v. Walgreen Drug Co., 108
Utah 577, 584, 162 P.2d 759, 763 (1945); Masterson v. Lennon, 115 Wash. 305,
308, 197 Pac. 38, 39 (1921).







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stantive change. Still to be decided in each case, in the light of the
particular disability and other circumstances, is the question whether the
individual plaintiff produced the requisite effort, precautions,
watchfulness, or compensation. Whether described as a higher standard of
care or as a standard of ordinary care applied to more difficult
circumstances makes little difference in the end. The preponderant rule is
that this question of requisite care is to be left to the jury or trier of
fact. Two fairly recent cases, however, stand as leading authority for a
different proposition.
In Smith v. Sneller215 the Pennsylvania Supreme Court held a blind plaintiff
guilty of contributory negligence as a matter of law who proceeded along the
sidewalk without using one of the "common, well- known, compensatory devices
for the blind, such as a cane, a 'seeing-eye' dog, or a companion."214 In a
follow-up case, the same court later held that once the blind person had the
compensatory device it was then a question for the jury whether he was
guilty of contributory negligence in its use.215 In Cook v. City of
Winston-Salem216 the Supreme Court of North Carolina outdistanced even the
Supreme Court of Pennsylvania, in an opinion that can only be regarded as
more than 100 years behind the times, even though it adhered to the
rhetorical regularities before mentioned. The blind plaintiff was declared
guilty of contributory negligence in that he "failed to put forth a greater
degree of effort than one not acting under any disabilities to attain due
care for his own safety: that standard of care which the law has established
for everybody" even though he was guided by a well-trained seeing-eye dog
handled in the approved way and performing its function as trained 217
These cases raise the question as to the nature, adequacy, and proper use of
the "common, well-known, compensatory devices for the blind" and their
relationship to the law of contributory negligence. In the first place, one
takes it for granted that the list of devices provided in the Smith case is
illustrative and not necessarily exhaustive. Presumably, any or all of them
could be discarded as outmoded if new and better devices were developed.
Experimental efforts to this purpose have long been going on in the physics
departments at the Massachusetts Institute of Technology and Haverford
College, many blind-concerned agencies, and by numerous private individuals
and companies. A central clearing and testing agency has been established at
Massachusetts.

213	345 Pa. 68, 26 A.2d 452 (1942).
 214	id. at 72, 26 A.2d at 454.
 215	Davis v. Feinstein, 370 Pa. 449, 452, 88 A.2d 695, 697 (1952).
2l«241 N.C. 422, 85 SJE.2d 696 (1955).
217 Id. at 431, 85 SJE.2d at 702.








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Secondly, and more importantly, the situations presented in the cases we
have been discussing, if no others, illustrate the limitations of the
devices and the people who use them. The farm hand in New Hampshire fell off
the unrailed side of a bridge though he "felt his way with his cane very
carefully , . . ,"218 The piano tuner in Washington, using his cane in his
habitual and customary way while traveling along the walk, "hit the pile of
lumber with his cane at the narrow place in the sidewalk, stepped aside to
avoid the lumber, and fell into the excavation . . on the other side of the
walk.219 The door-to-door salesman in New York carried a cane but,
anticipating no danger, was not using it when he stepped off the curb and
fell into the trench, which he could well have done even if he had first
found the curb with his cane.220 "[W]hen he approached the place where the
rail was down," on the wooden walk elevated four feet over the street, the
partially blind person in Colorado "commenced walking slowly, and felt about
him with his cane very carefully, for the purpose of definitely locating the
walk, but, notwithstanding these precautions, fell off."221 Haley was using
his cane which either went over or under the handle of the punner hammer
placed athwart his path, the punner hammer then tripping him and proving a
trap rather than a guard.222 The door-to-door salesman in Smith v.
Snetter223 was not carrying a cane. He stepped on a two-foot-high pile of
dirt bordering an unguarded trench across the sidewalk. The dirt gave way
and he fell into the trench. This could easily have happened to a man with a
cane despite the court's confident assertion that any one of the
compensatory devices "probably would have been sufficient to prevent this
accident."224 Just how easily is illustrated by the follow-up Pennsylvania
case where the blind plaintiff fell into an open cellarway though he
"carried a white cane customarily employed by blind persons."225 He was
using his cane as a guide "moving it laterally in order to touch the walls
of abutting buildings and keep on a straight course, and also tapping the
ground before him . . . ,"226 The carouser by night in Vermont, in seeking
the side of the highway, "put his cane before him with the point resting
upon the ground, and in that manner felt his way

218 Sleeper v. Sandown, 52 NJH. 244 (1872).
2WMasterson v. Lennon, 115 Wash. 305, 307,197 Pac. 33 (1921).
 220	Shields v. Consol. Gas Co., 193 App. Div. 86, 89, 133 N.Y. Supp.
240, 242 (1920).
 221	Garbanati v. City of Durango, 30 Colo. 358, 359, 70 Pac. 686 (1902).
 222	Haley v. London Elec. Bd., [1965] A.C. 778, 790 (1964).
 223	345 pa. 68, 71, 26 A.2d 452, 453 (1942).
 224	id. at 72, 26 A.2d at 454.
 225	Davis v. Feinstein, 370 Pa. 449, 451, 88 A.2d 695, 696 (1952). See
also Kennedy v. Cohn, 73 Pa. D. & C. 544, 546 (CP. 1950).
 226	Davis v. Feinstein, supra note 225, at 452, 88 A.2d at 696.







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before him, moving his cane about as he walked to find obstructions if there
were any"; he felt the edge with his cane and then either stepped over or
fell over into the ravine below.227 The guide dog in North Carolina came to
the edge of the drop-off and stopped as all good guide dogs should do. His
master came down on the foot that was in the air and tumbled down the
embankment.228 The churchgoer in Spirit Lake, Iowa, was not saved from her
accident by the fact that she was accompanied by her husband,229 or the
creek-crosser in New York by his wife.230 All blind people are acquainted
with the risk of traveling with an unfamiliar sighted companion who is so
preoccupied with the problem of guiding him as to be inalert to ordinary
hazards or unsure how to avoid them when observed.231
Among ordinary cane users and the so-called experts alike, there is a lively
debate about the merits of various canes—should they be long or short, rigid
or folding, metal, fiber glass, or wood, with curved or straight handles.
Similar debate exists between tlie cane users and the dog users.232 A blind
person carrying two canes, one in each hand, tapping the ground before him
with one, following the buildings and curb alongside with the other, still
exposes his head as a ready target for every leaning ladder, protruding
piece of scaffolding, or low-slung awning bar. An agile and adept blind
person without any device may in any given case travel better than most
blind persons with one. In this state of uncertainty, divided opinion and
diverse experience, courts are unwise indeed to make any particular
procedure so important as to declare contributory negligence per se the
conduct of a blind person who does not use it.
In nineteen states,233 questions of contributory negligence of the physi
 227	Glidden
v. Reading, 38 Vt. 52, 53 (1865).
 228	Cook v. City of Winston-Salem, 241 N.C. 422, 426, 85 S.E.2d 696, 699
(1955).
 229	Yeager v. Town of Spirit Lake, 115 Iowa 593, 597, 88 N.W. 1095, 1096
(1902).
 230	Harris v. TJebelhoer, 75 N.Y. 169, 170 (1878).
 231	In City of Rock Island v. Gingles, 217 El. 185, 75 N.E. 468 (1905),
the only blind participant was a horse, who, at dusk, walked into a deep,
unguarded trench in the street, drawing his sighted driver in after him.
Though the horse had and was using one of those common, well-known,
compensatory devices for blind horses, namely a sighted driver, he walked by
a faith not justified by law.
 232	A White Cane Debate: Liechty vs. Taylor, The Braille Monitor, Mar.
1965, p. 16; Guide Dog or White Cane: Which One, The Braille Monitor, Mar.
1965, p. 29; On Dogs: Ask the Man Who Owns One, The Braille Monitor, May
1965, p. 4; A Further Argument on the White Cane, The Braille Monitor, July
1965, p. 14.
 233	Alaska Comp. Laws Ann. §§ 28.25.010-.040 (Supp. 1963); Fla. Stat. §
413.07 (1959.); In. Rev. Stat. ch. 95j£, § 172a (1959); Kan. Gen. Stat. Ann.
§ 8-S58 (1949); Ky. Rev. Stat. § 189.575 (Supp. 1962); La. Rev. Stat. §
32:217 (Supp. 1962); Me. Rev. Stat. Ann. ch 22, §§ 132-35 (Supp. 1963);
Miss. Code Ann. § 8203.5 (1956); Mo. Ann. Stat. §§ 304.080-110 (Supp. 1959);
N.C. Gen. Stat. §§ 20-175 (1953); ND. Rev. Code § 39-10-31







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cally disabled in street and automobile accidents have now been settled by
the so-called white cane laws, to be discussed in detail later.234 In
substance, those laws confer on the blind, and sometimes on otherwise
disabled persons, positive rights in travel if they are carrying the white
cane or are led by a guide dog. These laws in the nineteen states, preserve
the pre-existing rights on streets and sidewalks and in traffic of blind
persons without canes or dogs. The failure to have a cane or dog, it is
declared, shall not be held to be contributory negligence or evidence
thereof. In general, thus, in these nineteen states, blind persons without
cane or dog may travel the streets and sidewalks without being flatly
precluded from recovering for accidents, or, even without having their
failure to use the travel aids considered at all as a factor in determining
whether they were in the exercise of due care. This provision was
incorporated in the white cane law of Pennsylvania,235 enacted after the
decisions in the Fraser236 and Smith2™ cases and the rule in those cases
making it negligence per se to travel without aids has therefore now been
reversed by the legislature. To do just that was the intention of the
drafters and sponsors of the white cane law in Pennsylvania. The provision
is also incorporated in the white cane law of North Carolina288 enacted
prior to the decision of the North Carolina Supreme Court in Cook v. City of
Winston-Salem.230 Nevertheless, the provision and the statute were neither
discussed nor applied by the court in rendering that decision. Since the
blind pedestrian in that case was guided by a dog, the provision was not
literally dispositive. Yet the provision and the other clauses of the white
cane law can only be read to settle the case. They are designed to free the
blind without travel aids of contributory negligence in ordinary street and
sidewalk accidents and to free the blind with travel aids of contributory
negligence in automobile accident cases. This design is frustrated and these
laws are rendered meaningless by a decision which holds that the blind with
travel aids (and presumably without them as well) are guilty of contributory
negligence as a matter of law in ordinary street and sidewalk accident cases
if they fail to see what

(Supp. 1957); Pa. Stat. Ann. tit. 75, § 1039 (1960); R.I. Gen. Laws Ann. §§
31-18-13 t» 31-18-16 (1956) ; S.C. Code §§ 438-41 (Supp. 1962); S£>. Code §§
44.0318-1, 44.9932 (Supp.
 1960)	; Tex. Rev. Civ. Stat. Ann. art. 671e (1960); Vt. Stat. Ann. tit.
23, § 1106 (1959); Va. Code Ann. §§ 46.1-237 to 46.1-240 (1950); W. Va. Code
Ann. § 1721(373) (7) (Supp.
 1961)	.
2Si See text accompanying notes 360-411 infra. 23BpA. Stat. Ann. tit. 75, §
1039 (1960). 236Fraser v. Freedman, 87 Pa. Super. 454 (1926).
 237	Smith v. Sneller, 345 Pa. 68, 26 A.2d 452 (1942).
 238	N.C. Sess. Laws 1949, ch. 324, §§ 1-4.
 239	241 N.C. 422, 85 SJE.2d 696 (1955).







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is plainly visible to the seeing. In North Carolina, the white cane law is
thus ignored by the supreme court and the blind are required to see.

4. Making the Risk Reasonable

The text-writers more than the courts talk about balancing the risk— that
is, the likelihood of the harm occurring and its seriousness when it
does—against the importance to the community of the defendant's activity and
the feasibility and cost of taking preventive or protective action. Some of
the cases, however, do talk in these terms in the field of our concern; and,
in most no doubt, it is implicit. Just as, on the one hand, the judges do
not consciously consider the importance and policy of the disabled being
abroad, so, on the other, they automatically assume the importance and
inevitability of trenches for sewers, water and gas pipes down streets and
across sidewalks, cellarways and loading pits, street and sidewalk holes for
telephone poles and watercocks, miscellaneous street and sidewalk defects
without purpose, and obstructions and stumbling blocks left on the roads and
walks. So far as the law of torts is concerned, these things are here to
stay. No judge has ever so much as intimated that municipalities, street
companies, plumbers, and abutting property owners should investigate
alternative methods of conducting their activities. So the remaining
question is the cost of preventive or protective measures and what they
should be. Here again, the answer to this question is often assumed, though
discussion of it is becoming more frequent.
In the blind cases, the issue has gradually narrowed to warning versus
protection. When trenches, cellarways and holes are involved, must the
defendant provide a barricade sufficient to stop and hold the blind
pedestrian, or does he do enough if he supplies a contraption which would
indicate to the pedestrian that danger lies ahead? No court in recent times
has suggested that the defendant must station a workman at the spot. Two
courts have taken a definite stand that an adequate warning was adequate.240
Others leave the question of defendant's due care to the jury. In Haley v.
London Elec. Bd.,24"1 the Lords agreed that "In the exercise of reasonable
care, local authorities and other public bodies are entitled to assume that
if a blind man exercises his privilege of using a public footpath he will
have been trained to protect himself from collisions by the use of his
stick."242 The guard is sufficient if it is of a nature such that the stick
of a blind man properly being used would

240Masterson v. Lennon, 115 Wash. 304, 197 Pac. 38 (1921) ; Haley v. London
Elec. Bd., [1965] A.C. 778 (1964).
 241	Haley v. London Elec. Bd., supra note 240.
 242	u, at 799.








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come into contact with it. It need not be so substantial that a blind man
could not knock it over and "so be propelled into the excavation."243 In
their Lordships' informed opinion, "a light fence like a towel rail about
two feet high,"2" used by the post office department, will adequately serve
this purpose. Their Lordships refused to overrule a case in which a blind
woman, apparently not carrying a cane, walked into the Post Office light
fence, pushed it ahead of her, fell into the hole beyond and was held guilty
of contributory negligence.245 Apparently, thus, in England, despite the
talk about bringing the law up to date, the street- tampering defendant is
entitled to assume that blind pedestrians will be trained in the use of a
cane which they will carry, and that a light, moveable, rail fence will be
detected by the cane user in time for him to stop. The holding of the Haley
case goes no further than the facts of the case require; not nearly as far
as the facts of life require. Only a minor fraction of the blind are trained
and skillful in the use of the cane; a somewhat larger percentage, but still
very small, use canes. What about the rest? Are they condemned to a life of
ostracism? "One is entitled to expect of a blind person," said Lord Reid in
the Haley case, "a high degree of skill and care because none but the most
foolhardy would venture to go out alone without having that skill and
exercising that care."240 Many reasonable, prudent, blind people do just
that. To do so is only as foolhardy as to choose to live in the world rather
than become a vegetable in the back room of somebody else's home.
To speak of cost to the defendant in these situations is to speak of
trifling sums, both in absolute terms and in the relation of money to social
policy. To furnish barricades which would keep blind people out of trenches
in the sidewalks and streets, said Lord Danning in the English court of
appeals, would "be too great a tax on the ordinary businesses of life."247
This has to be a figure of speech and not a serious financial calculation.
The House of Lords in Haley, while accepting the principle of the court of
appeals in this respect, yet found the necessary warning or protection
devices to be very inexpensive.
In a 1920 Scottish case,248 much quoted in Haley, consideration was given to
financial factors. The blind cannot afford to hire attendants so they must
be permitted on the streets without them 210 The city allows them free
passage on the tramway, indicating knowledge of their pres-

 243	Id. at 80O.
 244	Id. at 790.
245pritchard v. Post Office, 114 LP. 360 (CA. 1950).
2*8 Haley v. London Elec. Bd., [196S] A.C. 778, 791 (1964).
247 [1964] 2 Q.B. 121, 129 (1963).
248M'Kibbin v. Glasgow Corp., 57 Scottish LH. 476 (1920). 2« Id. at 593.







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ence and their poverty.250 No undue financial burden is placed on the city
to guard watercock holes in the street. To require the city to pad the
lampposts would be an undue burden.251 All of this is to speak in absolute
fiscal terms. It is to ignore the absolute fiscal cost, not to mention the
incalculable social cost, of maintaining the blind in idleness. If all of
the blind people capable of doing so were moved into the streets and into
employment, more than enough money would be saved to pad all the lampposts,
erect gold-plated padded barricades before every hole in the city, with
enough left over to pay for a small war or two. The reason for not padding
the lampposts is not financial. Nor is it the fact that they are common or
ordinary street structures as the Scottish court said. It is that they are
not very dangerous. They run up the cost of a blind man's band-aids but
little more.

D. Oh, to be Carried by a Common Carrier

With respect to common carriers, a second area in which the law of torts
takes note of the disabled, there are certain obvious contrasts with the
streets, highways, and sidewalks. When proceeding on the latter, the
pedestrian is the active agent, propelling himself along on his own
volition, having some power of control as to his course, pace, and general
procedure. The streets and sidewalks are a passive and submissive
instrumentality, with relatively fixed locations, contours and general
characteristics. When the pedestrian becomes a passenger, the situation is
reversed. He has little control either of what happens to him or of the
transport equipment, which, when set in motion, creates and constitutes its
own dangers. The disabled share with others a passive role, their disability
having next-to-nothing to do with whether they are killed in a plane crash,
train wreck, but smash-up, or taxi collision. The disabled person comes into
a situation of comparative disadvantage only when the transport facility is
starting, stopping, or at rest, and he is getting off, or on, making a
transfer, moving from carrier to station, or streetcar to curb.
Nor, in contrast with the situation on the streets, is there a problem of
preventability, based on the practicability of protection by an inanimate
device or the cost thereof. The employees of the carrier are on the spot,
available to serve not only as a physical barricade when appropriate, but to
provide mobile and positive help.252 Whatever the legal duty, an established
function of employees of carriers, in fact realized

 250	Id. at 594.
 251	Id. at 598.
252	See generally 14 Am. Jttr. 2d Carriers §§ 871-75 (furnishing
adequate accommoda - tions), §§ 876-80 (furnishing information to
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and discharged it is true in varying degrees, is that of service to the
passenger: in giving direction, aiding him in getting on and off and in
making connections, assisting with children, bundles, and luggage. In this
context, also, responsibility is less dependent on questions of
foreseeability, based on the likelihood that the disabled will come along
and be injured. Responsibility is dependent on identifying the disabled
among the passengers and adapting assistance to need.
The awareness of the carrier's employees of the presence among the
passengers of disabled persons and their needs for assistance is discussed
by the courts in terms of (1) actual notice given the employees by the
disabled persons or others, and (2) constructive notice arising out of the
fact that the disability in the given case is reasonably apparent, that is,
observable by the ordinarily prudent employee.253 Some courts will be
satisfied with nothing less than actual knowledge on the part of the
employee, however derived.254 Those permitting constructive notice and
relying on what the employees should have known in the circumstances, for
the most part, leave a good deal to be desired in the standards of employee
alertness demanded. They are certainly not those of 20/20 vision or
comparable capacity to draw inferences. Courts have held that constructive
notice of infirmity or disability and the need for assistance did not arise
in the following situations: A 73-year-old woman, weighing about 180 to 200
pounds, slow and sluggish of movement, preparing to descend the steps of a
railroad car;255 and a woman with an observable limp produced by a wooden
leg, even though an employee had assisted her up the train's stairs when she
boarded.2"0 It has also been held that blindness does not necessarily impart
notice. Where a blind person got aboard a train alone, slept through his
stop until the train began to pull away, and was then let off in the
switchyard in the small hours of the morning where he wandered for well over
an hour trying to find the station, and was struck by a switch engine, the
company was found not

 253	See Central of Ga. Ry. v. Carlisle, 2 Ala. App. S14, 517, 56 So.
737, 738 (1911); Southern Pac. Co. v. Buntin, 54 Ariz. 180, 94 P.2d 639
(1939) ; Denver & R.G.R.R. v. Derry, 47 Colo. 584, 587, 108 Pac. 172, 173
(1910); Pullman Palace Car Co. v. Barker, 4 Colo. 344, 347,34 Am. Rep. 89,
91 (1878) ; Mitchell v. Des Moines City Ry., 161 Iowa 100, 141 N.W. 43
(1913) ; Wilson v. Pennsylvania R.R., 306 Ky. 325, 326, 207 S.W.2d 755, 756
(1948) ; Louisville Ry. v. Wilder, 143 Ky. 436, 438, 136 S.W. 892, 893
(1911) ; Croom v. Chicago, M. & St. P. Ry., 52 Minn. 296, 53 N.W. 1128
(1893); Scott v. Union Pac. R. Co., 99 Neb. 97, 100, 155 N.W. 217, 218
(1915); Pierce v. Delaware L. & W.R. Co., 358 Pa. 403, 406, 57 A.2d 876,
877-878 (1948); Welsh v. Spokane & I. E. R. Co., .91 Wash. 260, 157 Pac. 679
(1916); Sullivan v. Seattle Elec. Co., 51 Wash. 71, 77, 97 Pac. 1109, 1112
(1908).
 254	Scott v. Union Pac. R.R., 99 Neb. 97, 100, 155 N.W. 217, 218 (1915);
Sullivan v. Seattle Elec. Co., 51 Wash. 71, 77, 97 Pac. 1109, 1112 (1908).
255	wiison v. Pennsylvania R.R., 306 Ky. 325, 207 S.W.2d 755 (1948). 25e
Pierce v. Delaware L. & W.R. Co., 358 Pa. 403, 57 A.2d 876 (1948).







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1966]	THE DISABLED AND TORT LAW 885

negligent for having failed to assist him to the depot. Sleepiness and
blindness look the same.257
Though, as in the case of the streets, it is common knowledge to employees
of common carriers, judges, and everybody else, supported if need be by
government statistics, that disabled persons are in the habit of using
common carriers unattended and that therefore they are likely to appear on
any given carrier at any time, yet the majority of courts hold, today no
less than in earlier times, that: carriers are for the able- bodied in the
ordinary use of normal senses and limbs;258 the employees are "not required
to anticipate [special] wants or needs,"259 are not under a duty "to be on
the lookout to discover that any particular passenger needs special
assistance,"260 or "to observe the condition of the passengers" in order to
see whether "they require such assistance";261 employees need not "on their
own initiative" render any special service,262 such as helping to detrain a
woman in feeble health who was carrying a sleeping child in one arm and a
valise in the other.263

1. Duty of Care Owed by the Common Carrier to the Disabled Passenger

The duty which the carrier owes to disabled persons, once the employees are
aware or should have been aware of their presence, is varied
257
Southern Pac. Co. v. Buntin, 54 Ariz. 180, 94 P.2d 639 (1939). Other cases
in which the court found no constructive notice: a woman carrying a valise,
a parasol, and a fan, accompanied by her husband, preparing to descend the
steps of a railroad car, Central of Ga. Ry. v. Carlisle, 2 Ala. App. S14, 56
So. 737 (1911); a man with typhoid fever and resulting impaired reasoning
and senses of sight and hearing, crossing tracks in the yard to catch a
train and not yet having encountered any employee of the company, Scott v.
Union Pac. R.R., 99 Neb. 97, 155 N.W. 217 (1915); a man who staggered when
he boarded the train at Coeur d'Alene, Idaho, aided by a trainman who
remarked to the conductor that he was "pretty full," but who did not stagger
or otherwise envince intoxication when he detrained at Spokane, Wash. Welsh
v. Spokane & I.E.R. Co., 91 Wash. 260, 157 Pac. 679 (1916).
208 Sevier v. Vicksburg & Meridian RJR.., 61 Miss. 8, 48 Am. Rep. 74 (1883).
2GS Illinois Cent. Ry. v. Cruse, 123 Ky., 463, 471, 96 S.W. 821, 823 (1906).
™>Ibid; see Southern Ry. v. Hayne, 209 Ala. 186, 95 So. 879 (1923).
201 Illinois Cent. Ry. v. Cruse, 123 Ky. 463, 471, 96 S.W. 821, 823 (1906).

263 Illinois Cent. Ry. v. Cruse, 123 Ky. 463, 96 S.W. 821 (1906). In 1939
the Supreme Court of Arizona said about the Cruse case: "The case, so far as
we know, has never been seriously criticised, nor the doctrine laid down
therein repudiated, and it has been quoted approvingly in many cases besides
those above cited." Southern Pac. Co. v. Buntin, 54 Ariz. 180, 187, 94 P.2d
639, 643 (1939). See also Central of Ga. Ry. v. Carlisle, 2 Ala. App. 514,
517, 56 So. 737, 738 (1911) ; Pullman Palace Car Co. v. Barker, 4 Colo. 344,
347, 34 Am. Rep. 89, 91-92 (1878); Wilson v. Pennsylvania R.R., 306 Ky. 325,
326-27, 207 S.W.2d 755, 756 (1948); Scott v. Union Pac. R.R., 99 Neb. 97,
101, 155 N.W. 217, 218 (1915); Welsh v. Spokane & LEU. Co., 91 Wash. 260,
264-65, 157 Pac. 679, 680-81 (1913); Sullivan v. Seattle Elec. Co., 51 Wash.
71, 77-78, 97 Pac. 1109, 1112 (1908). Contra Louisville Ry. v. Wilder, 143
Ky. 436, 437, 136 S.W. 892, 893 (1911): The employees must "exercise ... the
highest degree of care" in discovering disabled persons.








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ously stated as reasonable care and assistance in the circumstances,204
special care and assistance,205 or a high, higher, highest or extraordinary
degree of care.266 The variation does not seem particularly significant. All
courts pretty well agree that the employees must render such assistance as
is reasonably necessary for the safety of the disabled person considering
the nature of his disability.267 This standard was not attained: by a cab
driver who shut the door on the thumb of ,a 65-year-old diabetic, with right
leg cut off above the knee, standing at the side of the cab clutching the
center post where the driver had left her after assisting her from a
wheelchair;268 by a street car conductor who stood idly by watching an
18-year-old girl on crutches, with one short and shriveled leg, make her way
down the streetcar steps;200 by the pullman porter who took hold of a blind
passenger's elbows and assisted him up the first step to the platform and
then allowed him to proceed up the steps "feeling his way along as best he
could" until he found what seemed to him the proper opening, which instead
of being the entrance to the car was "the end of the platform away from the
door of the car .. . the same having been left open and not closed by a gate
as was the usual custom at such times."270 In the last case, the Colorado
Supreme Court declared: "Putting it as mildly as the facts justify, we say .
. . that the porter, knowing of plaintiff's blindness, was guilty of
reprehensible negligence in suffering plaintiff to proceed up the platform
steps without even cautioning him, or watching him, or guiding his
movements."271
In comparison, a cab company was found not negligent where five blind people
were entering the cab, the driver, in making room for one of them, asked a
second to move from the back to the front seat, and a third shut the door on
the fingers of the second.272 The court said the

284 Denver & R.G.RJR.. v. Derry, 47 Colo. 584, 589, 108 Pac. 172, 174
(1910); Mitchell v. Des Moines City Ry., 161 Iowa 100, 108-09, 141 N.W. 43,
46-47 (1913); Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 220,
60 SJE.2d 305, 308 (1950).
265	Mitchell v. Des Moines City Ry,, 161 Iowa 100, 109-10, 141 N.W. 43,
47 (1913); Illinois Cent. Ry. v. Cruse, 123 Ky. 463, 471, 96 S.W. 821, 823
(1906); Croom v. Chicago, M. & St. P. Ry., 52 Minn. 296, 298, 53 N.W. 1128,
1129 (1893); Welsh v. Spokane & I.E.R. Co., 91 Wash. 260, 264, 157 Pac. 679,
680 (1916).
266	Southern Pac. Co. v. Buntin, 54 Ariz. 180, 185-86, 94 P.2d 639, 641
(1939); Pullman Palace Car Co. v. Barker, 4 Colo. 344, 347, 34 Am. Rep. S9,
91 (1878) ; Stallard v. Wither- spoon, 306 S.W.2d 299, 301 (Ky. 1957);
Fournier v. Central Taxi Cab Inc., 331 Mass. 248, 249, 118 NJS.2d 767, 769
(1954); Pierce v. Delaware L. & WJR. Co., 358 Pa. 403, 406, 57 A.2d 877, 879
(1948); Scott v. Union Pac. R.R., 99 Neb. 97, 99, 155 N.W. 217, 218 (1915).
 267	2 Harper & James, Torts § 16.14 (1956).
 268	Stallard v. Witherspoon, 306 S.W.2d 299 (Ky. 1957).
 269	Mitchell v. Des Moines City Ry., 161 Iowa 100, 141 N.W. 43 (1913).
 270	Denver & R.G.R.R. v. Derry, 47 Colo. 584, 587, 108 Pac. 172, 173-74
(1910).
 271	Id. at 590, 108 Pac. at 174.
272Fournier v. Central Taxi Cab, Inc., 331 Mass. 248, 118 N.E.2d 767 (1954).







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company was not bound to protect disabled passengers against "highly
improbable harm."273
In the case of accidents to pedestrians caused by defects, obstructions

273 u. at 249, 118 N.E.2d at 768 (1954). The duty common carriers owe to
normal passengers is commonly phrased in terms of the highest degree of
care, sometimes qualified by "consistent with the practical operation of the
business." Accord Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34S, 34 Am.
Rep. 89 (1878); McMahon v. New York, NJS., & H.RJR., 136 Conn. 372, 374, 71
A.2d 557, 558 (1950); Louisville Taxicab & Transfer Co. v. Smallwood, 311
Ky. 405, 408, 224 S.W.2d 450, 452 (1949); Griffin v. Louisville Taxicab &
Transfer Co., 300 Ky. 279, 280, 188 S.W.Zd 449, 450 (1945) ; Guinevan v.
Checker Taxi Co., 289 Mass., 295, 297, 194 N.E. 100, 101 (1935); Scott v.
"Union Pac. R.R., 99 Neb. 97, 99, 155 N.W. 217, 218 (1915) ; Archer v.
Pittsburgh Ry., 349 Pa. 547-48, 37 A.2d 539-40 (1944). Bennett v. Seattle
Elec. Co., 56 Wash. 407, 411, 105 Pac. 825, 827 (1909). This doctrine was
first laid down in this country by the United States Supreme Court in a case
dealing with an overturned stagecoach where the carrier was said to
undertake to transport persons safely "so far as human care and foresight
can go . . . ." Stokes v. Saltonstall, 38 U.S. (13 Pet.) 181, 190 (1839).
Harper and James point out that the reasonable care rule, announced by some
courts, in guarding passengers against "the great potential dangers which
attend rapid transit" is in effect the same as a high degree of care and
that the difference between the two forms of statement "resolves itself into
one merely of logomachy." 2 Harper & James, op. cit. supra note 267, §
16.14. Moreover, at the same time the courts speak of the highest degree of
care, they sometimes declare that the carrier is not under any obligation to
assist passengers in alighting, any help given is a matter of courtesy, the
employees need merely call the station and stop long enough to provide
reasonable opportunity for the passengers to leave the cars or board them.
Central of Ga. Ry. v. Carlisle, 2 Ala. App. 514, 516, 56 So. 737, 738
(1911); 111. Cent. Ry. v. Cruse, 123 Ky. 463, 96 S.W. 821 (1906); Steeg v.
St. Paul City Ry., 50 Minn. 149, 151, 52 N.W. 393, 394 (1892); Yarnell v.
Kansas City Ry., 113 Mo. 570, 57677, 21 S.W. 1, 2 (1893). The high degree of
care rule seems to be applied principally with respect to the operation of
the equipment. Some courts hold that the carrier is bound to provide a
suitable and safe place and means of boarding and alighting, and that
whether these were provided and the assistance that should have been offered
if they were not by the reasonably prudent employee are questions for the
jury. E.g., Mitchell v. Des Moines City Ry., 161 Iowa 100, 109, 141 N.W. 43
, 47 (1913); Morarity v. Durham Traction Co., 154 N.C. 586, 588, 70 S.E.
938, 939 (1911). Employees in discharging their duties must take reasonable
care not to injure passengers. Griffin v. Louisville Taxicab & Transfer Co.,
supra at 281, 188 S.W.2d at 450; Tefft v. Boston Elevated Ry., 285 Mass.
121, 188 NJL. 507 (1934) ; Benson v. Northland Transp. Co., 200 Minn. 445,
448, 274 N.W. 532, 533 (1937). For an analysis of the differences in
boarding and alighting problems of taxis, buses, streetcars, and trains, see
Southeastern Greyhound Lines v. Woods, 298 Ky. 773, 184 S.W.2d 93 (1944).
The Kentucky court concluded that the rule that a carrier owes passengers
the highest duty of care is too generally stated. Rather it should read:
that the carrier has "the duty to exercise the highest degree of care, skill
and diligence for the safety of the passenger as is required by the nature
and risk of the undertaking, in view of the mode of conveyance and other
circumstances involved, which may vary according to the immediate activity,
instrumentality, time or place." Id. at 775-76, 184 S.W.2d at 95. "The
modern trend is away from the artificial and perplexing categories of high
and highest degree of care and toward the one standard for all cases of
reasonable or ordinary care under the circumstances of the particular case."
14 Am. Jxjr. 2d Carriers § 916 (1964). For cases dealing with the duty of
carriers to furnish suitable accommodations, including providing heat
necessary for the health, comfort, and safety of passengers during the trip,
see Silver v. New York Cent. R.R., 329 Mass. 14, 105 N.E.2d 923 (1925); Owen
v. Rochester-Penfield Bus Co., 278 App. Div. 5, 103 N.Y.S.2d 137 (1951).








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or excavations in the streets, the judicial focus of discussion is often the
conduct of the pedestrian and whether he was duly careful in seeking to
avoid harm to himself. In the common carrier cases, doubtless because of the
nature of the business including its potential dangerousness in a number of
ways, the courts are most often preoccupied with determining the character
and extent of the duty of the defendant, and comparatively little is said
about contributory negligence. The passenger is of course called upon to
exercise due care for his own safety274—even required upon rare occasion to
make "a more than ordinary diligent and attentive use" of his remaining
senses275—but what that care is, in the circumstances of disability and the
surroundings of various common carriers, is seldom analyzed. The situation
is regarded as largely in the control of the carriers, and as very little in
the control of the passengers. The passenger is under no duty to ask for
needed services if his disability is apparent.278 Contributory negligence
would normally be hard to establish when the passenger was being assisted by
the employee.277 The principal areas left for possible contributory
negligence are in the failure to request assistance when disability is not
apparent or in not allowing employees a suitable chance to render the aid.
The Supreme Court of South Carolina held that there was contributory
negligence as a matter of law when a visibly deformed and crippled midget
alighted from a train unaided.278 He had not given the employees, said the
court, "a reasonable opportunity" to help him.279 It is pointed out in the
American Law Reports that the/carrier's conduct at times seems to give the
disabled passenger a choice of two dangers: a danger of injury if he alights
at once; a danger of injury if he is carried to some further point where
there will be no one to aid him.280 The passenger can hardly be charged with
negligence if he decides to take his chances at once. In addition, the
emergency doctrine is applicable in determining whether the choice was a
reasonable

 274	See, e.g., Yazoo & M.V.R. Co. v. Shaggs 181 Miss. ISO, 179 So. 274
(1938); Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 219, 60
S.E.2d 305, 308 (19S0). The Washington Supreme Court said that the carrier
owed the passenger, crazed with drink, "a duty commensurate with his
condition. The corollary of this rule must be that his duty to care for his
own safety should be measured by his condition as to sobriety." Bennett v.
Seattle Elcc. Co., 56 Wash. 407, 410, 105 Pac. 825, 827 (1909).
 275	Gonzales v. New York & Harlem R.R., 1 Jones & Spencer 57, 62 (N.Y.
Sup. Ct. 1871); Anschel v. Pennsylvania R.R., 34 Pa. 123, 127, 29 A.2d 694,
697 (1943).
 276	Mitchell v. Des Moines City Ry., 161 Iowa 100, 108, 141 N.W. 43, 46
(1913): "Most people afflicted as she [plaintiff] was feel a delicacy in
asking assistance or in urging upon the attention of strangers the fact that
they are unfortunate and crippled."
2" See cases cited in 14 Am. Jur. 2d Carriers § 1011 n.21 (1964).
 278	Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 60 S.E.2d
305 (1950).
 279	Id. at 217, 60 S.E.2d at 308. 280Annot., 30 Ai.R.2d 334, 337 (1953).







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one.281 Moreover, it has been held that where the passenger's disability
prevented him from discovering that the car was moving, he was not negligent
per se in getting off.282
Noticeably absent from the common carrier cases is talk about some of the
common, well-known, compensatory devices for the blind. Either the
seeing-eye dog or the cane would be helpful in keeping the blind man from
falling off the unguarded end of the train platform; but neither would be
particularly helpful in finding a connecting train or in locating the
station from the middle of the switchyard. The cane but not the dog would be
helpful in descending train steps, locating the stool placed at the bottom,
and determining the height of the steps. Doubtless the absence of judicial
talk about these devices is due to the presence of the employee on the
scene, regarded by courts as more useful and reliable than either of the
other compensatory aids.
That the disabled who need them ought to be provided with attendants, as
some courts have said,283 leaves open the question: by whom? To require the
impoverished disabled to supply them out of their own resources on penalty
of not being able to travel on common carriers is simply one form of locking
the disabled up in their houses and institutions. The government-sponsored
arrangements284 by which blind passengers may take a guide with them for the
price of one ticket are a recognition of the poverty of the blind as well as
their supposed need for guide services. They do not solve the problem of the
blind person who is without a guide and who, because of the availability of
these arrangements on almost all bus and railroad lines in the "United
States, is often told that he will not be permitted to get aboard
unattended. The arrangements thus work in some cases to the disadvantage of
the disabled traveler by giving support to the carriers in the free exercise
of a supposed right not to accommodate them. Where services are abundantly
available on the airlines, supplying the disabled passenger with many
attendants, and only the blind person's poverty remains, the National
Federation of the Blind has opposed the two-for-one concession authorized by
bills currently pending before Congress.285 As to poverty, the blind are not
to be distinguished from others who are poor.286

281 Ibid.
282Poak v. Pacific Elec. Ry., 177 Cal. 190, 170 Pac. 159 (1918).
 283	E.g., Croom v. Chicago M. & St. P. Ry., 52 Minn. 296, 53 N.W. 28
(1893).
 284	See, e.g., 44 Stat. 1247 (1927), 49 U.S.C. § 22(1) (1964); Cal. Pub.
Um. Code § 525; Hawaii Rev. Law § 109-22 (1957); Kan. Gen. Stat. Ann. §
66701 (1949); N.J. Stat. Ann. § 48:3-34 (1940).
 285	HJR. 8068, 88th Cong., 1st Sess. (1964) ; National Federation of the
Blind Resolution 64-09, Phoenix 1964.
28BSome smaller groups of the blind have favored these measures: The BVA
Bulletin, Oct. 1964, Resolution No. 13.







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The basis and extent of the duty of common carriers toward disabled
passengers is set forth in the oft-quoted words of Croom v. Chicago, M. &
St. P. Ry.:287

Of course, a railroad company is not bound to turn its cars into nurseries
or hospitals, or its employees into nurses. If a passenger, because of
extreme youth or old age, or any mental or physical infirmities, is unable
to take care of himself, he ought to be provided with an attendant to take
care of him. But if the company voluntarily accepts a person as a passenger,
without an attendant, whose inability to care for himself is apparent or
made known to its servants, and renders special care and assistance
necessary, the company is negligent if such assistance is not afforded. In
such case it must exercise the degree of care commensurate with the
responsibility which it has thus voluntarily assumed, and that care must be
such as is reasonably necessary to insure the safety of the passenger, in
view of his mental and physical condition. This is a duty required by law as
well as the dictates of humanity.288

Thus, the basis of the duty is the voluntary and knowing acceptance of
responsibility, making plain that common carriers are free to decline to
carry disabled persons, at least those who "ought to be provided with an
attendant to take care" of them.
The doctrine of the Croom case would seem, on its face, to infringe the
common law command of equal and non-discriminatory access to the services
and facilities of common carriers and to repudiate any general right on the
part of the disabled to travel by this mode. The courts have taken the
position that, first, the refusal of the carriers to transport disabled
persons is based on proper classification and warrantable discrimination and
therefore is not a violation of the common law command; and, second, that
the disabled in general do not have a right to be carried by the common
carriers, the cases sometimes cited for the proposition that they do being
in fact the foundation of the doctrine of the Croom case.289
The common law command of equal and non-discriminatory access arises out of
and is part of the notion that carriers are common, that is, that they hold
themselves out to the public generally as in the business

 287	S2 Minn. 296, 53 N.W. li28 (1893).
 288	id. at 298, S3 N.W. 1129.
 289	see Williams v. Louisville & N.R., ISO Ala. 324, 43 So. 576 (1907);
Yazoo & M. Valley R. v. Littleton, 177 Ark. 199, S S.W.2d 930 (1928);
Illinois Cent. R. v. Allen, 121 Ky. 138, 89 S.W. ISO (1905); Illinois Cent.
R. v. Smith, 85 Miss. 349, 37 So. 643 (1905); Zackery v. Mobile & O.R., 75
Miss. 746, 23 So. 434 (1898); Zackery v. Mobile & O.R., 74 Miss. S20, 21 So.
246 (1897); Sevier v. Vicksburg & M.R., 61 Miss. 8 (1883); Hogan v.
Nashville Interurban Ry., 131 Tenn. 244, 174 S.W. 1118 (1915); Benson v.
Tacoma Ry. & Power Co., SI Wash. 216, 98 Pac. 60S (1908).







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of transporting persons for hire.290 The command is imposed by law, does not
arise out of the contractual relation between the carrier and the passenger,
is intended for the benefit of the traveling public and in many states is
re-declared and strengthened by statute and constitutional provision.291 But
equal access, the courts hold, is provided when all who are similarly
situated are admitted on the same terms and a ban against Discrimination
does not forbid distinctions among potential passengers that are warranted
by the special relation of a particular class of persons to the function of
the carrier or the act of transportation.292 Thus they have held that
carriers can refuse to receive persons who are objectionable, dangerous to
the health, safety, or convenience of the other passengers: those "who
desire to injure the company, notoriously bad, or justly suspicious persons,
gross or immoral persons, drunken persons . . . those who refuse to obey the
rules,"293 those who are obnoxiously filthy,294 or those who are affected
with a contagious or repulsive disease.285 To this motley crew, in view of
the association in men's minds between these ill-assorted persons and
problems, it was inevitable that the courts should add the physically
disabled. To supply their need for attendants, would, in effect, convert the
conveyance into a hospital and the carrier's employees into nurses.296

2. The Right of they Disabled to be Transported on Common Carriers
The leading cases on the right of the disabled to be carried by a common
carrier open the door of the carrier only a crack to admit a few.297 They
hold that the carrier may not properly adopt a flat rule that

29° See, e.g., Hogan v. Nashville Interurban Ry., supra note 289, at 254,
174 S.W. at 1120. See generally, 13 Am. Jxm. 2d Carriers § 2 (1964).
291 See cases and statutes cited in 13 Am. Jur. 2d Carriers §§ 175, 181
(1964), 14 Am. Jur. 2d Carriers § 859 (1964).
™*lbid.
283 Zachery v. Mobile & O.R. Co., 74 Miss. S20, 21 So. 246 (1897):
204 Atwater v. Delaware, L. & W.R. Co., 48 N.JX. 55, 2 Atl. 803 (1886).
20b Pullman Car Co. v. Krauss, 14S Ala. 395, 40 So. 398 (1906); Bogard v.
Illinois Cent. R., 144 Ky. 649, 139 S.W. 853 (1911); Atwater v. Delaware,
1.. & WJL, supra note 294.
296 Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89 (1878);
Croom v. Chicago, M. & St. P. Ry., 52 Minn. 296, 53 N.W. 1128 (1893).
207 in Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89 (1878),
the ill were declared to have the right. The statement was dictum however
and the emphasis of the opinion was upon "the increased risk arising from
conditions affecting their fitness to journey" resting upon their own
shoulders where they are unknown to the carrier. Id. at 348, 34 Am. Rep. at
92. For the language casting doubt on the right in Colorado, see Denver &
R.G.RJR. v. Derry, 47 Col. 584, 108 Pac. 172 (1910): "It may be that a
railroad company is not bound to receive as a passenger one who is helpless
or blind, or otherwise incapable of properly caring for himself, unless
accompanied by a competent attendant." Id. at 588, 108 Pac. at 174. A 1911
Kentucky case, Louisville Ry. v. Wilder, 143 Ky. 436, 136 S.W. 892 (1911),
declared the right in more encompassing terms: "[C]hildren . . . feeble,
infirm, . . . aged








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no sick, insane, imbecile, cripple, invalid, or blind person will be
received by conductors, or sold tickets by agents, unless accompanied by
some person charged with their care and comfort while traveling.208 There
was no disposition to question this rule as a wholesale invasion of the
rights of a large class of people to live in the world, or to go about in
it; no reference to the cases declaring the disabled have the same right as
others to be upon the streets and highways, saying in effect that if they
are able to get there they have a right to be there; no doubts about the
proposition—indeed it was explicitly affirmed—that carriers may refuse to
receive persons if they require "other care than that which the law requires
the carrier to bestow upon all its passengers alike."200 Moreover, the
Mississippi court felt itself able to say what classes of persons require
such "other care," though it faltered a little in vouchsafing information
about the character of the additional care: "Primarily the affliction of
blindness unfits every person for safe travel by railway, if
unaccompanied."300 Accordingly, the carrier might presume blind people unfit
to travel alone, a presumption not to be regarded as "a hardship upon the
persons afflicted with blindness or other disabling physical infirmity" but
rather "as a safeguard thrown around them for their protection."801 But
since not every sick, crippled, infirm, or blind person requires additional
care, the individual must be allowed to overcome this presumption against
him if he can. This he can do by offering to the company's agent proof of
his competence to travel alone. The company's flat rule of exclusion was
thus to be traded for a presumption of the incompetence of the disabled,
itself a rule of exclusion but not a flat one. This opened the door a crack
to admit those adjudged by uninformed agents to be competent and who have
the hardihood to insist on the point. In the social context of the day, the
courts did not feel it necessary to find some rational justification for the
closed-door policy which they and the carriers adopted; quite the contrary,
they found it necessary to justify opening the door even the crack they did.
Two reasons were given for doing so: fear that the less severely
disabled—those only slightly sick or lacking a leg or arm—might be caught in
the dragnet at

persons [and] persons who are encumbered with babies or bundles .... all
these classes of persons have the right to use the car . . . ." Id. at 440,
136 S.W. at 894. Here again the statement is dictum. The question in the
case was whether the carrier was negligent in starting the train before the
plaintiff with a baby in her arms was seated.
298 Illinois Cent. R. Co. v. Smith, 85 Miss. 349, 37 So. 643 (190S); Zackery
v. Mobile & O.R. Co., 75 Miss. 746, 23 So. 434 (1898) ; Zackery v. Mobile &
O.R. Co., 74 Miss. 520, 21 So. 246 (1897); Hogan v. Nashville Interurban
Ry., 131 Tenn. 244, 174 S.W. 1118 (1915).
209 Illinois Cent. R. Co. v. Smith, 85 Miss. 349, 356, 37 So. 643, 644
(1905).
 300	ibid.
 301	ibid.







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the station door;302 and the undesirability of placing an "unwarranted
handicap on a class of men capable of being serviceable to society, and
therefore on society itself."303 The courts did not discuss why either
serviceability to society or the right to live in it should be tested by the
physical capacity to mount the train steps unaided or find one's way to a
connecting carrier. They only thought it a proper test for those who could
do these things unaided. To the best of our knowledge and belief this
question was not put to Franklin Delano Roosevelt as he was assisted aboard
a train to go to Washington to be inaugurated President of the United
States.
The rule governing the right of the disabled to ride on common carriers,
thus evolved by the courts around the turn of the century, constituted at
that time a slight improvement on a harsher rule sought to be imposed by the
railroads. While perhaps consistent with the prevailing social attitudes of
that day, but certainly inconsistent with the rule long since developed by
the courts regarding the right of the disabled to be on the streets and
highways,304 that rule is still invoked by the carriers today. In the summer
of 1965, it was cited by an agent in Atlanta, Georgia, as justifying refusal
to transport a blind person with normal ability to get about. It was widely
circulated by the passenger agents' association as their answer to a flurry
of protest from organizations of the blind.305 "Rule 8(f). Ticketing Infirm
or Objectionable Passengers.—No person, who because of mental, physical, or
other disability, is incapable of caring for himself or herself, will be
received as a passenger, unless accompanied by a competent attendant, and no
contract for transportation or ticket purchased by or for such a person in
contravention of this rule shall be valid."306
The objections to this rule which existed when it was formulated are still
valid today and the changed times have added others. At least as to the
physically disabled, it is wrong in principle. Services necessary for the
use of their equipment and facilities should be provided by the carriers as
part of the care which "the law requires the carrier to bestow upon all its
passengers alike."307 That this would compel them to convert their trains
into hospitals and their employees into nurses is probably

soazackery v. Mobile & O.R. Co., 75 Miss. 746, 752, 23 So. 434, 435 (1898).
303 Hogan v. Nashville Interurban Ry., 131 Tenn. 244, 251-52, 174 S.W. 1118,
1120 (1915). The Hogan case involved a young paralytic who, using crutches,
traveled by train daily to Vanderbilt University where he was a student and
a teacher.
804 See text accompanying notes 132-67 supra.
305 Letter to R. Kletzing, president NFB, from Trans-Continental R.R.
Passenger Ass'n, E. B. Padrick, Chairman, July 6, 1965. soo ibid.
307 Illinois Cent. R. Co. v. Smith, 85 Miss. 349, 356, 37 So. 643, 644
(1905).








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colorful argument rather than fact. In any event, it speaks only to the
cost; and the public should bear the cost of making effective such an
important right. The argument about the necessity of Rule 8(f) is largely
academic. In practice, services adequate to enable most disabled persons to
travel, even though they might commonly be thought to require an attendant,
are provided by the agents of the company or are ' available from porters
and others on the premises. Equally important, the rule is misapplied by
agents not generally knowledgeable about such things to exclude disabled
persons who do not need an attendant. Arguments about cost, availability of
existing services, and mis-administration, however, all must give way to the
fact that the rule is in contravention of today's policy of integration of
the disabled into the social and economic life of the community. That policy
requires at least that the presumption of incompetence of the disabled
should be exchanged for a presumption of competence, leaving the burden of
disproof on the carrier; and that every disabled person who makes his way to
the station should be put aboard with whatever help is necessary. In
practice, this is what the large airlines do, without noticeable disaster to
themselves or to the country. Architectural barriers in public conveyances
should receive the same treatment as they do in public buildings and
facilities.308
If the disabled are to live in the world, travel by common carrier is a
necessary right—as necessary as is the right to use the streets, highways
and sidewalks. Indeed, it may properly be regarded as aspect of the right to
be upon the streets, highways, and walks. That the latter are public, while
the common carriers are in some sense private, does not change the nature of
the right or its necessity and harmony with basic social policy. People
cannot live in the world, today, more than ever, without moving freely
within communities and between communities. This involves not only walking
or riding wheelchairs upon the sidewalks and streets, but also utilizing
such means of transportation over them as are commonly available to others.
The disabled are less able to use private cars driven by themselves, and are
correspondingly more dependent on public transportation. The fact that
common carriers are regulated and subsidized by the public, and are engaged
in a common calling with historic common law implications of rights to equal
access, does not create the claim of the disabled to live in the world and
gain access to it through the use of common carriers. It does, however, add
strength to that claim and make its denial even less tenable. Only when that
right and its implications are fully understood by the courts, and avowed
and implemented by them, will this branch of the law of torts

3°8 See text accompanying notes 102-31 supra.







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be brought into conformity with the demands of the second half of the
twentieth century and its policy of the social and economic integration of
the disabled.
The extent to which the existing rule of the carriers has been modified, if
at all, by the guide dog statutes is not entirely clear. Those statutes in
twenty-three309 states expressly cover public conveyances, occasionally, as
in California, detailing these as "common carriers, airplane, motor vehicle,
railroad train, motor bus, street car, boat . . . ,"310 As noted earlier,311
these statutes are generally addressed to the problem of gaining admittance
for the dog, that is, of removing restrictions on its presence. In the case
of public conveyances, they also seek to make plain that the master is not
to be charged for the transportation of the dog,312 and sometimes that the
dog is not to occupy a seat.313 The special question presented with respect
to the carriers is whether the dog is to be treated as "a competent
attendant" within the meaning of their rule; or whether the blind person
adjudged by an agent to be incompetent is required to be accompanied by a
competent human attendant in addition? The narrowest view of the statutes is
that they do not enlarge the class of blind persons eligible to travel
unattended and that the persons otherwise competent to travel alone may take
their dogs with them. An intermediate view is that the statutes authorize
all blind persons with dogs to travel, eliminating all questions of their
competence. The broadest view is that the statutes presuppose a right of all
persons to use common carriers, and, presupposing that right, they are
designed to remove special obstacles placed in the way of blind persons
having their dogs with them when exercising the right. The first view
conforms to the literalism •of the statutes. The third view conforms to the
historic origins and purposes of the statutory formulation and the policy of
integrationism. The second view does not particularly conform to either, but
is the one that is followed in practice. Arguments between the agents of
common car
309
Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii,
Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan,
Missouri, New Jersey, New Mexico, New York, Rhode Island, Tennessee, Texas,
Washington, West Virginia. See note 74 supra for a listing of the applicable
statutes.
sio Cal. Pen. Code § 643.S.
311	See text accompanying notes 69-102 supra.
 312	ark. Stat. Ann. § 78-212 (Supp. 1957); Cal. Pen. Code § 643.5; Conn.
Rev. Stat. § 22-346a (Supp. 1963); Idaho Code Ann. § 18-5812A (Supp. 1965).
Iowa Code Ann. § 351.30 (Supp. 1964); Me. Rev. Stat. § 54 (Supp. 1963);
Mass. Stat. Ann. § 98A (1956); Mo. Stat. Ann. § 209.150 (1962); N.J. Stat.
Ann. § 48:3-34 (1953); R.I. Stat. Ann. § 29-2-16 (1957); Tex. Stat. Ann. §
25-889a (1960); Wash. Rev. Code Ann. § 81.28.140 (1962); W. Va. Code Ann. §
2568(1) (1961).
 313	Ga. Code Ann. § 79-601 (1964); Ind. Stat. Ann. § 16-212 (1964); La.
Stat. Ann. § 52 (Supp. 1964).







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riers and the blind travelers focus on the right of the dog to go aboard;
the right of the master is not disputed. Thus is human progress achieved.
Since there are few guiding and no attendant functions the dog can perform
in or about public conveyances, this is an ironic method of advancing human
rights,

E. Automobiles

Automobile law is the third area in which the law of torts pays special
attention to the disabled. The rules of negligence as they stood at the
advent of the automobile have been applied generally to the new means of
locomotion—true, not without some adaptation, selection, and difference of
emphasis.
The starting point is the pre-existing right of people to use the streets
and highways. They have this right whether afoot or in automobiles and they
can exercise it without distinction as to time or place. Thus, pedestrians
and drivers were early held to have an equal right not only to the use of
the streets and highways but to be in any part of them at any time.314 When
using the streets and highways, pedestrians and drivers alike are under an
obligation to proceed in a safe and careful fashion so as not to infringe
the equal rights of others or to injure them. As always, due care is
determined by the circumstances.815
Rules of the road have been developed by custom, statute and ordinance to
make it possible for the hordes of pedestrians and drivers to use the roads
and streets efficiently, with maximum satisfaction and minimum injury to all
in the exercise of equal rights. Otherwise, automobiles would have to
proceed at the pace of the slowest pedestrian. These rules generally provide
that the pedestrian has the right of way in marked cross walks, at
intersections, and on the side of the road. Drivers have the right of way
elsewhere. Drivers and pedestrians alike must proceed with due care even
when they have the right of way.810 When they do not have the right of way,
they may still proceed but must do so with care appropriate in the
circumstances, including the circum
 314	Apperson
v. Lazro, 44 Ind. App. 186, 87 N.E. 97 (1909); McLaughlin v. Griffin, 1SS
Iowa 302, 13S N.W. 1107 (1912); Warmna v. Dick, 261 Pa. 602, 104 Atl. 749
(1918); Dougherty v. Davis, SI Pa. Super. 229 (1912).
 315	Rush v. Lagomorsino, 196 Cal. 308, 237 Pac. 1066 (192S); Fahey v.
Madden, S8 Cal. App. 537, 209 Pac. 41 (1923); Carpenter v. McKissick, 37
Idaho 729, 217 Pac. 1025 (1923) ; Stotts v. Taylor, 130 Kan. 158, 285 Pac.
571 (1930) ; Button v. Metz, 66 N.M. 485, 349 P.2d 1047 (1960) ; Feltner v.
Bishop, 348 P.2d 548 (Wyo. 1960).
 316	cal. Vehicle Code §§ 2.1950, 2.1954 (Supp. 1965). See also III. Ann.
Stat., ch. 95J^, § 172(c) (Supp. 1965); N.Y. Vehicle & Tkaeetc Law § 1154;
Texas Rev. Civ. Stat. art. 6701d, § 79 (1960).







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stance that others have the right of way.317 In view of the apportionment of
rights of way and alternate rights to use particular portions of the streets
and highways, the equal character of the rights of pedestrians and drivers
has gradually disappeared from the rhetoric of judicial opinions.
The disabled have the same right to the use of the streets and highways that
other people do. When they exercise the right, they too must proceed with
due care in the circumstances, including the circumstance of their
disability. In 1909, an Indiana court, in a case involving an infirm and
defectively sighted plaintiff who was run down by the defendant's
automobile, held that the plaintiff had a right to be on the highway
unattended and was bound to use only ordinary care when there.318 The
pedestrian and the car had the same right to the road and must not infringe
each other's use.319 Since the defendant had so infringed the right of the
plaintiff by negligently failing to pay proper attention to his presence on
the highway, judgment against him was sustained. In 1912, in a leading
case320 the Iowa Supreme Court, affirming a judgment for a plaintiff who was
struck by the defendant's automobile, explicitly applied the rule in Hill v.
City of Glenwood,321 a 1904, blind plaintiff, defective sidewalk case. In
the 1912 case, the plaintiff, who had been blind for five or six years and
who was familiar with the streets of the town, walked along the main
business street and waited to cross at the corner. He let a buggy go by,
listened, heard nothing more, started across, and was struck. The court held
that the plaintiff had done all he was required to do.322
As to contributory negligence in this area, the courts generally follow the
line restated by the New Hampshire Supreme Court: "[T]he [reasonable man]
standard has been flexible enough in the case of the aged and physically
disabled persons to bend with the practical experiences of every day life.
The law does not demand that the blind shall see, or the deaf shall hear, or
that the aged shall maintain the traffic ability of the young."323 The
reasonable man standard does require that the dis
317
Cax. Vehicle Code § 1951; New York Vehicle & Traeetc Law, §§ 1151, 1154;
III. Ann. Stat. ch. 9SJ^, §§ 170-175, especially § 172 (Supp. 1965); Pa.
Stat. Ann. tit. 75, § 1039 (1959); Tex. Rev. Civ. Stat., art. 6701d, §§
33-34, 82 (i960); N.C. Gen. Stat. § 20-174 (1937). See also Pearson &
Dickerson Contractors v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943);
RMmer v. Davis, 126 Wash. 470, 218 Pac. 193 (1923).
3i8Apperson v. Lazro, 44 Ind. App. 186, 87 NJE. 97 (1909).
310 Id. at 186, 88 N.E. at 100 (1909).
320 McLaughlin v. Griffin, 155 Iowa 302,135 N.W. 1107 (1904). 321124 Iowa
479, 100 N.W. 522 (1904). 322 McLaughlin v. Griffin, 155 Iowa 302, 135 N.W.
1107 (1904). 823 Bernard v. Russell, 103 NJH. 76, 77, 164 A.2d 577, 578
(1960).







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abled make greater use of their remaining senses and faculties: that the
blind listen more carefully, the deaf look more closely, and the aged or
lame allow more space and time.
The distinctiveness of the problems of the deaf arises from the invisibility
of their condition and hence the absence of notice to drivers. As a factor
in travel accidents, especially those involving automobiles, deafness is
almost automatically considered exclusively in terms of the standard of care
of the deaf person or, in other words, of the negligence of the deaf
plaintiff. The deaf pedestrian who puts himself in a place of danger by
walking along a streetcar track must, on peril of being found contributorily
negligent as a matter of law, look backward at suitable intervals as well as
forward.884 If he walks diagonally across the roadway on a clear but dark
night, he must, at the same peril, be sufficiently watchful of his
surroundings to discover that a car with lights aglow, moving at a lawful
speed and on the proper side of the road, is approaching him from his right
rear.323 And if he should happen to stand in the middle of a country road
just wide enough for one car, the jury might very well think that he should
"take a position facing across the road instead of along it so that he could
see both ways, or one way as well as the other, by merely turning his
head."326 On the other hand, the deaf pedestrian in making compensatory use
of his eyes need not continually look in all directions but may fix his
attention on the direction from which the next danger is to be
anticipated.327 He is entitled to assume, moreover, that drivers will not
exceed the speed limit.328 If the pedestrian was otherwise in a position of
right the fact that hearing would have saved him will not relieve the
defendant of liability.829 A deaf pedestrian who, approaching the corner,
stopped, waited for the light to change, and then proceeded to cross the
street, was found not contributorily negligent either as a matter of law or
as a matter of fact when he was struck by a fire truck responding to an
alarm, moving north in a south-bound lane, with siren and bell sounding at
intervals, the traffic on the block having been stopped.830 The plaintiff,
said the court, "used his eyes and did all that prudence and care would
require under the circumstances. ... [He] was entitled to assume that the
green light gave him the right of

324 Kerr v. Connecticut, 107 Conn. 304,140 Atl. 751 (1928). • 325Hizam v.
Blackman, 103 Conn. 547, 131 Atl. 41S (192S). 326 Hanson v. Matas, 212 Wis.
275, 279, 249 N.W. SOS, S06 (1933). 327Robb v. Quaker City Cab Co., 283 Pa.
4S4, 129 Atl. 331 (1925).
 328	See, Covert v. Randall, 298 Mich. 38, 298 N.W. 396 (1941); Robb v.
Quaker City Cab Co., supra note 327.
 329	pink v. City of New York, 206 Misc. 79, 132 N.Y.S.2d 172 (Sup. Ct.
1954); c). Wilson v. Freeman, 271 Mass. 438, 171 N.E. 469 (1930).
 330	Fink v. City of New York, supra note 329.







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way. . . . [Plaintiff] is not to be penalized because of such affliction and
not being able to hear siren and bell."331
Cases dealing with, the contributory negligence of the lame are too few in
number, scattered in jurisdiction, and some of them too old to be revealing
of a judicial view of the special travel problems of this group. In a 1911
Arkansas case,332 the appellate court held erroneous instructions to the
jury that if the motorist ran into the pedestrian a prima facie case of the
motorist's negligence was established. In holding, at this early stage of
placing the automobile in its proper place in the law of torts, that
negligence and contributory negligence were matters of fact, the court did
not concern itself with the fact that the plaintiff was "a beggar on his
crutches,"333 except to say that such as he have the same right to the use
of the streets as the man in his automobile. That the crutches gave notice
to the motorist of the pedestrian's condition, and therefore of the care
required of him in the circumstances, was not a subject of judicial comment.
The New Hampshire court, in a 1946 case,334 held that the lame can only be
required to do what they can do, and whether, with their limitation, they
have exercised due care at an intersection is a question for the jury. In a
1954 Michigan case,335 plaintiff, with a bad hip, and using a cane, was
found contributorily negligent as a matter of law for failing to' make
"further observation in the direction of the approaching vehicle after
proceeding into the lane of foreseeable danger. . . . Having discovered the
oncoming vehicle, it is the pedestrian's duty to keep watch of its progress
and to exercise reasonable care and caution to avoid being struck by it."336
In Pennsylvania, with its fixation on contributory negligence, this rule was
applied to a lame pedestrian-with a cane who had not discovered the oncoming
automobile in his careful observation before leaving the curb. The court
held he must maintain a vigilant lookout all the way across.337 In
California, a cripple on crutches, crossing at an intersection and struck
near the opposite curb, was held to have had a right to be where he was and
to have exercised due care in the circumstances.338 In that case, however,
the plaintiff saw the defendant's car three or four blocks down the street
and kept his eye on it all the

831 Id. at 80, 132 N.Y.S.2d at 173.
332Millsap v. Brodgon, 97 Ark. 469, 134 S.W. 632 (1911).
 333	U. at 472, 134 S.W. at 633.
 334	Bellemare v. Ford, 94 Nil. 38, 45 A.2d 882 (1946). 835Heger v.
Meissner, 340 Mich. 586, 66 N.W.2d 200 (1954).
336 id. at S89, 66 N.W.2d at 222, citing Ludwig v. Hendricks, 235 Mich. 633,
638, 56 N.W.2d 409, 411 (1953).
837Rucheski v. Wisswesser, 3S5 Pa. 400, 50 A.2d 291 (1947). 338Florman v.
Patzer, 133 Cal. App. 358, 24 P.2d 228 (1933).







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way. But for the fact that the defendant was speeding, the plaintiff would
have made it across.
In the case of the blind, relatively less emphasis is placed on the conduct
of the pedestrian and more on that of the defendant: less on contributory
negligence and more on the higher degree of care owed by the defendant.339
The courts uniformly hold that the totally blind and the partially blind are
entitled to rely upon the protection of traffic signals at intersections,340
and that this is true whether they detect a change in the signal by the
sound of a bell,341 by notice from others that a light has changed,342 or
presumably by their realizing that other pedestrians are starting across and
that cars have stopped. At intersections not controlled by traffic signals
and when crossing streets elsewhere than at intersections, whether the blind
or defectively sighted pedestrian was exercising due care in the
circumstances is a question which the appellate courts direct be left to the
jury.343 The American Law Reports remarked upon the penalties of being
partially blind as against being totally so.344 Contributory negligence of
the totally blind pedestrian, in being struck by a motor vehicle, is
ordinarily left for the jury, and the jury usually brings in a verdict for
the plaintiff which is then sustained by the court.345 Not so with the
partially blind. Their motor accident cases are also usually sent to the
jury on the issues of negligence and contributory negligence, but the jury
generally returns a verdict for the motorist which in turn the court usually
sustains. If the American Law Reports has counted the cases correctly, and
it is not entirely clear that it has with respect to the partially blind,340
this may be a rule of life if not of law.
Though the disabled have the right to use the streets and highways and it is
common knowledge that they exericse the right, yet the doctrine of
foreseeability is seldom invoked in the automobile cases. A few early cases
said that drivers must know what everybody else knows, that consequently
they must expect that disabled persons will be among the pedestrians they
approach and that they must proceed in a manner to

339	Compare, however, Trumbley v. Moore, 151 Neb. 780, 39 N.W.2d 613
(1949), where a pedestrian with impaired vision was held contributorily
negligent as a matter of law.
340	E.g., Griffith v. Slaybaugh, 29 F.2d437 (D.C. Cir. 1928). 3« Woods
v. Greenblatt, 163 Wash. 433, 1 P.2d 880 (1931).
3*2 Coco-Cola Bottling Co. v. Wheeler, 99 Ind. App. 502, 193 NJE. 385
(1935).
 343	See, e.g., Muse v. Page, 125 Conn. 219, 4 A.2d 329 (1939) ; Bryant
v. Emerson, 291 Mass. 227, 197 NJE. 2 (1935); Hefferon v. Reeves, 140 Minn.
505, 167 N.W. 423 (1918); Bernard v. Russell, 103 N.H. 76, 164 A.2d 577
(1960); Curry v. Gibson, 132 Ore. 283, 285 Pac. 242 (1930).
 344	Annot., 83 A.L.R.2d 769, § 3, at 775 (1962).
 345	ibid.
 346	id. at 776.







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safeguard them against injury.347 Other courts say, rather, that the driver
has a right to proceed upon the assumption that all pedestrians in his path
possess normal faculties and that they will exercise those faculties
normally in the interests of their own safety.348 Thus, while a person who
digs a trench in a street is bound to anticipate that disabled persons will
pass that way, and, accordingly, must put up adequate warning or guard,346
that same trench-digger driving along the same street to work on the trench
is not bound to anticipate the passage of those disabled persons, and hence
need not drive his truck with precaution for their protection. At this point
the rule of hazards in the street350 is not applied to the driver of
automobiles on the streets, although the basis for the rule would seem to
exist in one case no less than in the other.
When the driver knows, or in the exercise of normal faculties should have
known, that the pedestrian was disabled, he must exercise a high degree of
care to avoid injuring him. The analogical origin and reasons are given by
the Supreme Court of Louisiana: "The rule that motorists are held to unusual
care, where children are concerned, applies also to adults, who, to the
knowledge of the driver, possess some infirmity, such as deafness, or
impaired sight, or who suffer from some temporary disability such as
intoxication. The physical infirmity in one case, and the extreme youth in
the other, affect the ability to sense impending danger and to exercise
judgment in the emergency by the selection of proper means and observing the
necessary precaution to avoid an accident."351 In the leading case of
Weinstein v. Wheeler?™ the Oregon Supreme Court said that the driver "must
use care commensurate with the danger" when he knows "or in the exercise of
reasonable diligence ought to know" that the pedestrian is blind.353 "It
will not do to drive on under such circumstances and assume that one, who
thus deprived of sight, will jump the right way."334 The Oregon court at
first said that the automobile must be brought to a stop but later modified
this to the effect that the automobile must be stopped unless the exercise
of due care will

3*7 See Warruna v. Dick, 261 Pa. 602, 104 A. 749 (1918); Doughtery v. Davis,
SI Pa. Super. 229 (1912).
sisE.g., Fleming, Torts 249 (3d ed. 1965)._Aydlette v. Keim, 232 N.C. 367,
61 S.E.2d 109 (19S0).
 349	Balcom v. City of Independence, 178 Iowa 685, 160 N.W. 30S (1916);
Fletcher v. City of Aberdeen, 54 Wash. 174, 338 P.2d 743 (1959).
 350	see text accompanying notes 173-74 supra.
351	Jacoby v. Gallaher, 10 La. App. 42, 46, 120 So. 888, 890 (1929).
352127 Ore. 406, 271 Pac. 733 (1928).
353 Jd. at 414, 271 Pac. at 733-34. Mi ibid.








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be satisfied with something less.355 Whether such care was exercised in the
circumstances is a question for the jury.
When" should the driver know that the pedestrian is disabled? The crutches
or wheelchair of the lame are obvious notice to him. Hearing aids, on the
other hand, are very inconspicuous. Uncertain step and irregular progress
are not obvious signs of blindness in the pedestrian although they may call
for further observation by the motorist. The guide dog and the cane are
important as devices of notice to the driver, whatever their usefullness as
travel aids to the pedestrian. They are greatly emphasized by the courts and
no doubt are very influential with juries.356 Short of statutory command,
however, the courts have not yet held that it is negligence as a matter of
law for a driver to run into a blind man carrying a cane or guided by a dog.
In Cordis v. RoesseP™ the Kansas City court of appeals came close to doing
that. There the plaintiff, proceeding along the sidewalk at a steady pace,
carrying a cane in the hand nearest the street, walked into the side of
defendant's car which crossed the sidewalk in front of him to enter a gas
station. Said the court in'sustaining a jury verdict for plaintiff:
Defendant "saw, or could have seen, if he had looked, that which was plainly
visible; and it was his duty to look and see."358 In effect, the court held
that the jury is entitled to find that the defendant saw, or in the exercise
of reasonable diligence, should have seen, the cane if the plaintiff carried
it.850

F. White Cane Laws: The Struggle for the Streets Revisited

The rights of blind and partially blind persons in traffic are the subject
of the so-called white cane laws. Generally, but with some significant and
many minor variations, these statutes (1) free the blind and partially blind
carrying a white cane or being guided by a dog of contributory negligence,
whether as a matter of law or of fact, (2) make the driver who runs into
them in effect negligent per se and frequently guilty of a crime, (3)
eliminate questions about whether the driver had notice of the pedestrian's
total or partial blindness, and (4) generally give the blind and partially
blind a legal status in traffic, thus making effective their right to use
the streets in urbanized and automobilized

 355	Ibid.
 356	See, e.g., Cardis v. Roessel, 238 Mo. App. 1234, 186 S.W.2d 753
(1945) ; Curry v. Gibson, 132 Ore. 283, 285 Pac. 242 (1930).
357	238 Mo. App. 1234, 186 S.W.2d 753 (1945).
 358	id. at 1239, 186 S.W.2d at 755.
 359	The case was submitted to the jury on the issue of humanitarian
negligence under which it must be shown "that the plaintiff was in imminent
and impending danger and oblivious thereof or unable to extricate himself,
and that defendant saw and observed or could have seen and observed,
plaintiff's said danger and his obliviousness or inextricability in
sufficient time to have stopped, swerved, slowed, or warned." Id. at 1241,
186 S.W.2d at 756.







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America. They substantially alter the law of negligence as it stood before
the statutes, even in states where the courts extended the greatest
protection to the disabled pedestrian.
However such laws have affected the legal status of the blind and partially
blind, they have as a matter of fact greatly contributed to their safety.
Knowledge that the white cane and dog are symbols of the blind is as yet far
from universal but is becoming fairly well diffused. To the extent that this
knowledge does exist, the cane and the dog provide effective notice and
inspire efforts on the part of drivers to avoid their users and on the part
of pedestrians and others to assist them.360 The very reasons for the
success of the white cane, ironically, are given by opponents of the
statutes as arguments against them: They call attention to the blind and in
fact make, them a conspicuous class, advertising their helplessness,
arousing public sympathy, and serving as a badge of their difference and
limitations. According to this view, the more the knowledge of the
significance of the white cane spreads, the worse the situation becomes for
the blind.361 The response of one blind man is that he would rather be
conspicuous and alive than inconspicuous and dead. The organizations of the
blind take the position, that far from being a badge of their separate,
unequal and dependent status, the white cane is a symbol of the equality,
independence and mobility of the blind.362 The white cane has become the
hall mark of the National Federation of the Blind.303
White cane campaigns are not confined to conveying word about the white cane
laws. They are generally designed as well to inform the public about the
social arid economic conditions among the blind and the aspirations of the
blind for full and useful lives. Such campaigns have long been organized
around white cane days and white cane weeks sponsored by the National
Federation of the Blind and by Lions Clubs. In 1964, the National Federation
of the Blind secured a joint resolution by Congress asking the President to
proclaim October IS of each year as white cane safety day.364 In his
proclamations, the President has spoken not only of

300 when the New York legislature was considering enactment of a white cane
law, a questionnaire on the merits of the proposal was distributed to chiefs
of police, attorneys general, and safety officers in other states. A high
proportion answered. The conclusion was that white cane laws, when properly
publicized and administered, are a definite help to blind and sighted alike.
He Walks by Faith Justified by Law, The Blind American, June 1961, p. 17;
Liddle, Mobility: A Survey, I, II, III, The New Beacon, May, June, July
1964.
361,1 White Cane Debate: Leichty vs. Taylor, The Braille Monitor, March
196S, p. 16; Legal Victory for Blind Pedestrians, The Braille Monitor, Dec.
1964, p. 1; Bartleson, The White Cane, The Braille Monitor, Dec. 1963, p.
10.
 362	He Walks by Faith Justified by Law, op. cit. supra note 360.
 363	vice President Humphrey's address at the Twenty-fifth Annual
Convention of the National Federation of the Blind, The Braille Monitor,
Aug. 196S, p. 8.
304 78 Stat. 1003.







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the travel significance of the white cane but of its significance as a
symbol of the ability of the blind to live "normal productive lives."305
Though the use of the staff or cane as a travel aid by which the blind
person feels his way and avoids obstructions and holes is doubtless very
ancient, and though we know from the cases806 that active blind persons have
employed such a staff or cane in this country for over 100 years, the white
cane as a device for giving notice to drivers and others that the user is
blind is strictly modern, though by no means strictly American, and is
related to the fabulous growth in the use of the automobile, the thickening
of traffic conditions, and the skyrocketing of accidental injuries to
pedestrians whether able-bodied or not. The white cane statutes began to be
adopted by the states in the 1930's.367 Their enactment is directly
traceable to activities of organizations of the blind and to Lions Clubs.868
Today, due to the continuing activities of these organizations, forty-nine
states have white cane laws explicitly covering the blind and partially
blind369 and one covering the "incapacitated" pedestrian generally.870

365 29 Fed. Reg. 140S1 (1964) ; 30 Fed. Reg. 12931 (1965).
s6«Balcom v. City of Independence, 178 Iowa 68S, 160 N.W. 30S (1916);
Sleeper v. Sandown, 52 NJ3. 244, 250 (1872); Glidden v. Town of Reading, 38
Vt. S2, S3, 57 (1865).
 367	Cal. Stats. 1935, ch. 126, §§ 1-3 (1935); Idaho Code Si. 1937, ch.
46, §§ 1-3, at 62; Mich. Stats. 1937, Act 10, at 13; New. Laws 1939, ch. 58,
at 53; NJH. Laws 1939, ch. 65, § 1, at 56-57; N.j. Stats. 1939, ch. 274, §
1, at 696.
 368	William Taylor, a blind lawyer practicing in Media, Pennsylvania has
been chairman of the National Federation of the Blind's White Cane Committee
and an active leader in this work for over a quarter of a century.
869 Aia. Code Ann. tit. 36, § 58 (1940); Alaska Comp. Laws Ann. §§
28.2S.010.040 (Supp. 1963); Ariz. Rev. Stat. Ann. § 28-798 (19SS); Ark.
Stat.'Ann. §§ 7S-631, 75-632
 (1964)	; Cal. Pen. Code §§ 643, 643a, 643b; Colo. Rev. Stat. Ann. §§
40-12-24 to 40-12-26 (1953); Conn. Gen. Stats. Rev. § 211 (1949); Del. Code
Ann. tit. 21, §§ 4144, 4150 (1964); Fla. Stat. Ann. § 413.07 (19SS); Ga.
Code Ann. § 68-1658 (1957); Hawaii Rev. Laws §§ 109-23 to 109-24 (Supp.
1963); Idaho Code Ann. §§ 18:5810-18:5312 (1947); III. Ann. Stat. ch. 95^, §
172a (Smith-Hurd 1957); Ind. Ann. Stat. §§ 10-4925 to 10-4927 (1956); Iowa
Code §§ 321:332-321:334 (1962); Kan. Gen. Stat. Ann. § 8-S58 (1949); K.y.
Rev. Stat. § 189.575 (1962) ; La. Rev. Stat. § 32-217 (1962) ; Me. Rev.
Stat. Ann. ch. 22, § 132-35 (1963); Md. Ann. Code art. 66%, § 194 (1957);
Mass. Laws Ann. ch. 90, § 14a (1949); Mich. Stat. Ann. § 28:770 (1954);
Minn. Stat. Ann. § 169.202 (1960); Miss. Code Ann. § 8203.S (1942); Mo. Ann.
Stat. §§ 304.080-304.110 (1959); Mont. Rev. Codes Ann. §§ 32.1143-32.1145
(1961); Neb. Rev. Stat. §§ 28,478-28,480 (1956); New. Rev. Stat. § 426.510
(19S7); NB. Rev. Stat. Ann. § 263.S8 (1963); NJ. Stat. Ann. § 4-37.1 (1961);
NM. Stat. Ann. § 64-18-65; N.Y. Vehicle & Traitic La* § 1153; N.C Gen. Stat.
§ 20-175 (19S3); NJ). Code Ann. tit. 39, § 39-10-31; Ohio Rev. Code Ann. §§
4511.47, 4S11.99E
 (1965)	; Okla. Stat. Ann. tit. 7, § 11-13 (1951); Ore. Rev. Stat. § 483.214
(1953); Pa. Stat. Ann. tit. 75, § 1039 (1960); R.I. Gen. Laws Ann. §
31-18-13 to 31-18-16 (1956); S.C Code § 44.0318-1, 44.9932 (1960); Tenn.
Code Ann. §§ S9-880 to S9-881 (19SS); Tex. Rev. Civ. Stat. art. 6701e
(1948); Utah Code Ann. § 41-6-80 (1960); Vt. Stat. Ann. tit. 23, § 1106
(1959); Va. Code Ann. §§ 46.1-237) to 46.1-240 (1950); Wash. Rev. Code §§
46.60.260.270 (1962); Wis. Stat. Ann. § 346.26 (1958); W. Va. Code Ann. §
1721(373) (1961).
370 Wyo. Stat. Ann. § 31-163 (1957). The 1947 amendment which declared the
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1. Jurisdictional Analysis of the White Cane Laws

A fairly typical white cane statute is that of Kentucky. It provides:
"Whenever a pedestrian is crossing or attempting to cross a public street or
highway, guided by a guide dog or carrying in a raised or extended position
a cane or walking stick which is white in color or white in color and tipped
with red, the driver of every vehicle approaching the intersection, or place
where such pedestrian is attempting to cross, shall bring his vehicle to a
full stop before arriving at such intersection or place of crossing, and
before proceeding shall take such precautions as may be necessary to avoid
injuring such pedestrian."371 It is made unlawful for any person not totally
or partially blind "or otherwise incapacitated" to carry such a cane or at
least to do it in that position "while on any public street or highway."372
The act is not to be construed as depriving totally or partially blind or
"otherwise incapacitated persons" without a stick or dog of "the rights and
privileges conferred by law upon pedestrians crossing streets or
highways."373 Nor is the failure of such persons to have a cane or dog "upon
the streets, highways or sidewalks" to be "held to constitute nor be
evidence of contributory negligence."374 Violation is made punishable by a
fine not to exceed twenty-five dollars.376
The provisions of the Kentucky statute as to: blindness or partial
blindness; the otherwise incapacitated; the color of the cane; the position
in which it is to be held; the alternative use of the dog; the duty of the
driver; the crossing both of streets and highways; preservation of the
rights of those without canes or dogs; declaration that they are not
contributorily negligent; and the appending of a penal sanction, are all
fairly common features in the white cane statutes.
In five states the benefits of the white cane statutes are extended only to
those who are "blind."376 Forty-three states extend protection to the
wholly, totally or partially blind and the visually handicapped.377 Fifteen

and dog using blind to be included in the class designated as
"incapacitated" was subsequently repealed in 1955. Wyo. Sess. Laws 1955, ch.
225, § 70. It thus appears the wholly or partially blind in Wyoming may not
be "incapacitated" within the meaning of the statute. There have been no
cases so construing the statute. 3u Kr. Rev. Stat. § 189.575(2) (1962).
 372	Ky. Rev. Stat. § 189.575(1) (1962).
 373	Ky. Rev. Stat. § 189.575(3) (1962).
 374	ibid.
876 Ky. Rev. Stat. § 189.990(1) (16) (1962).
 375	Arkansas, Illinois, Minnesota, Nebraska, New Jersey. See note 369
supra for the applicable statutes.
377 Alabama, Alaska, Arizona ("blind or industrial blind," which uses 20/200
or peripheral vision defect standard) California, Colorado, Connecticut,
Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri,
Montana, Nevada, New Hampshire, New York, North Carolina, North Dakota, Ohio
("blind" is defined to include partially blind), Oklahoma,








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states extend the protection of the white cane laws to those "otherwise
incapacitated."378 As these jurisdictions commonly specify that the
protection of the statute shall extend to the "wholly or partially blind or
otherwise incapacitated" the other disabilities embraced presumably are not
of a visual character. Yet the other disabilities must be like blindness or
partial blindness in that they involve traffic hazards which can be
diminished by the use of the cane or dog.
The most popular device is the white cane, with or without a red tip, which
is recognized in forty-one states.379 Ten jurisdictions also recognize the
use of metallic, chrome, aluminum or light-colored metal.880 Only three
states required the cane to be all white,381 while five require the white
cane have a red tip.382 In eighteen states, the cane-using blind need only
carry or use the cane to comply with the statutes' conditions383 while
twenty-six specify that the cane must be carried in the "raised or extended"
position.384 There are no cases construing this quite uncertain expression.
Presumably the object of the requirement is to ensure that the cane is in
such a position as to be visible to the approaching motorist or pedestrian.
This object can be accomplished by the mere carrying or using of the long
fiberglass white cane now coming into vogue. A few

Oregon ("blind" is defined to include partially blind), Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin. See note 369 supra for the
applicable statutes.
378	Alabama, Florida, Kansas, Kentucky, Louisiana, Maine, New York,
North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, West Virginia. See note 369 supra for applicable statutes.
379	Alaska, California, Colorado, Connecticut, Delaware, Florida,
Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nevada,
New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wiscon - sin. See
note 369 supra for the applicable statutes.
380	Alaska, Arkansas, Louisiana, Maine, Maryland, Mississippi, New York,
Pennsylvania, Virginia, West Virginia. Not all types of canes are recognized
by each of these states; each state listed does recognize one of the
metallic type devices. See note 369 supra for the ap - plicable statutes.
 381	Minnesota, Nebraska, Washington. See note 369 supra for the
applicable statutes.
 382	Alabama, Arizona, Arkansas, Indiana, New Jersey, See note 369 supra
for applicable statutes.
383	Alabama, Arizona, Arkansas, California, Colorado, Connecticut,
Georgia, Idaho, Illinois, Indiana, Iowa, Michigan, Montana, Nebraska,
Nevada, New Jersey, Oklahoma, Utah. See note 369 supra for the applicable
statutes.
384	Alaska, Delaware, Florida, Kansas, Kentucky, Louisiana, Maine,
Massachusetts, Mississippi, Missouri, New Hampshire, New Mexico, New York,
North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Ver - mont, Virginia, West Virginia,
Wisconsin. See note 369 supra for the applicable statutes.









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jurisdictions have altered the expression, substituting "at arm's
length,"385 "with arm extended,"386 or carrying or using "an exposed
cane."387
Thirty-seven states extend the protection of the white cane statutes to the
user of the guide dog in the alternative.888 States which permit the blind,
the partially blind, and the otherwise incapacitated the use of the guide
dog do not forbid its use by others,389 unlike the common statutory practice
with respect to the cane.
The duly imposed on the sighted pedestrian or motorist who approaches or
comes in contact with the protected class of persons varies with the
jurisdiction. Thirty-four states require the motorist to come to a full stop
in all cases, and take such precautions as may be necessary to avoid
accident or injury to the pedestrian.390 Two of these states require the
motorist to remain stationary until the pedestrian clears the roadway,891
and Maryland requires the motorist, after stopping, to leave a clear path
until the pedestrian is out of the street.392 Virginia requires only that
the motorist stop.393 Eight states require the motorist to stop only when it
is necessary to avoid accident or injury;39* nine require the driver yield
the right of way and/or take reasonable care to avoid injuring the protected
pedestrian without specific mention of stopping.395 Forty-one states impose
the duty under the statute on the "approaching" motorist.396

385 Maryland, North Carolina. See note 369 supra for the applicable
statutes. 380 Minnesota. See note 369 supra for the applicable statute.
387	Hawaii. See note 369 supra for the applicable statute.
 388	Alabama, Alaska, Arizona, Arkansas, California, Florida, Hawaii,
Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania,
Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, West Virginia. Of these, thirty-two require only the use of the
"guide dog" or "seeing-eye dog" without more; the other five—Arkansas, Iowa,
Michigan, New Hampshire, and Oregon—require the animal be "specially
trained," harnessed, or in a particular position. See note 369 supra for the
applicable statutes.
 389	see note 74 supra for applicable statutes.
300 Arizona, California, Colorado, Florida, Georgia, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico,
North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South
Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington
(inferential!/), Wisconsin. See note 369 supra for the applicable statutes.
sol Nebraska, North Carolina. See note 369 supra for the applicable
statutes.
 802	Md. Code Ann. art. 66%, § 194 (1957).
 803	Va. Code § 46.1-237 (Supp. 1964).
384 Alabama, Alaska, Louisiana, Mississippi, New York, Pennsylvania, Texas,
West Virginia. See note 369 supra for the applicable statutes.
 805	Arkansas, Connecticut, Delaware, Hawaii, New Jersey, Ohio, Utah,
Wisconsin, Wyoming. See note 369 supra for the applicable statutes.
 806	Alabama, Alaska, California, Colorado, Connecticut, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts,









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The duty imposed on the motorist to stop, take precaution, yield and the
like is imposed on sighted pedestrians in nine states.307
Those states which require the driver to yield the right of way, or stop, or
take reasonable care without specific reference to where or when,
nevertheless require that deference be shown the disabled pedestrian,
wherever he is found and within the space limitations prescribed by the
particular statute. The specific mention of "approaching" adds nothing to
the statutes, nor does the use of the term "upon observing." The motorist
remains bound to that acuity of observation which graces the ubiquitous
reasonable man, and so presumably will be charged with observing him whom he
should have rather than him whom he did in fact. Similarly, the requirements
of specific acts by the driver, such as sounding the horn and coming to a
complete stop in all cases, do not provide greater protection to the
disabled pedestrian than is secured by the duty of the driver to "take
reasonable care." The driver is thus burdened with possible prosecution for
the technical violation of a criminal statute, while his actions under the
circumstances may well have been appropriate to the protection of the
pedestrian from injury.
Three states provide that the driver must "immediately come to a full stop"
when he "approaches within" a specified number of feet of the disabled
pedestrian.398 The distances specified are but three or ten feet, distances
so short as to make it impossible for an automobile to stop or take other
evasive action within them. If the driver need not anticipate the action
commanded of him until he is within the distance mentioned, the only
remaining question is the extent of the pedestrian's injuries; the driver's
civil liability would apparently be strict liability, and his criminal
liability cast in doubt because of the practical impossibility of
compliance. Judges might reasonably interpret these statutes to require the
driver to have come to a stop when he is three or ten feet from the
pedestrian. Thus did Wisconsin solve this problem of draftsmanship: "An
operator of a vehicle shall stop . . . before approaching closer than 10
feet . . . ."39D
Thirty-six states provide that the protection of the statutes applies
wherever the pedestrian seeks to cross the highway.400 Thirteen states

Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire,
New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Vermont, Virginia, West Virginia, Wisconsin. See note 369 supra for the
applicable statutes.
397	Alabama, Alaska, Arkansas, California, Colorado, Idaho, Indiana,
Montana, Nevada. See note 369 supra for the applicable statutes.
398	Georgia (three feet), Michigan (ten feet), Oklahoma {knowingly
within three feet). See note 369 supra for the applicable statutes.
399	Wis. Stat. Ann. § 346.26(1) (1958).
400	Alabama, Arkansas, California, Colorado, Connecticut, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
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restrict the protection to intersections and crosswalks.401 Only five states
deal with the intersection or crosswalk controlled by an officer or
signal.402 Presumably it would follow that in the remaining states where the
disabled pedestrian is given the right of way without reference to places
where there are signals or officers, the disabled pedestrian prevails over
any claim built on the command of the officer or the right conferred by the
light. Nevertheless, though the Texas statute makes no mention of the
signal-controlled crossing, the courts in that state appear unwilling to
permit the blind person to recover in a civil action where he entered the
crossing against the light.403
Twenty-two states provide that their white cane statutes are not to be
construed so as to deprive the disabled pedestrian without canes or dogs of
rights to which they would otherwise be entitled; nor are they to be so
construed that the failure of disabled pedestrians to use canes or dogs
shall constitute contributory negligence or evidence thereof 404 Two states
provide only that the white cane statute is not to affect other rights
outside the statute;405 one state, Illinois, uses the contributory
negligence disclaimer without reference to other rights/08 and the remaining
twenty-five states have no saving clause of either type. In these states,
presumably, absence of a saving clause will not be construed to deprive
disabled pedestrians of rights which were theirs before the statute or to
affect the contributory negligence law otherwise applicable to disabled
pedestrians without compensatory devices.
In thirty-eight states violations of the white cane statutes are made a

Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North
Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virginia, Wisconsin. See note 369 supra for the
applicable statutes.
 401	Alaska, Arizona, Louisiana, Maryland, Minnesota, Mississippi,
Missouri, New York, North Carolina, Pennsylvania, Texas, Washington, West
Virginia. Alaska, Maryland, New York, North Carolina, Pennsylvania, Texas
and West Virginia restrict the statutory applicability to "crosswalks or
intersections"; Washington to crosswalks only; Arizona, Minnesota, Missouri,
to intersections only, and Louisiana, and Mississippi use the term "at or
near" crosswalks or intersections. See note 369 supra for the applicable
statutes.
 402	Arkansas says that the special protection does not apply at crossing
places controlled by a traffic signal; Maryland that they do not apply at
crossings or intersections controlled by an officer or a signal; North
Carolina, and Virginia that they do not apply when the crossing is manned
but that they do apply when it is controlled by a signal; and New Jersey
that traffic signals are not to affect the pedestrian's right. See note 369
supra for applicable statutes.
4°3Meacham v. Loving, 28S S.W.2d 936 (Tex. Sup. Ct. 1956).
404	Alabama, Alaska, Arizona, Florida, Kansas, Kentucky, Louisiana,
Maine, Massachu - setts, Mississippi, Missouri, North Carolina, North
Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas,
Vermont, Virginia, West Virginia, Wisconsin. See note 369 supra for the
applicable statutes.
405	New Hampshire, Oregon. See note 369 supra for the applicable
statutes.
406	In. Rev. Stat. Ann. ch.        § 172A (Smith-Hurd 1957).







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criminal offense, the penalty generally being a small fine or short term
imprisonment.407 In eleven states the only recourse against the driver is a
civil action for damages.408

2. Critique and Suggested Reform

The saving clauses in the white cane statutes preserving the rights of the
blind non-users of canes or dogs in traffic as they existed in the law
before the adoption of the white cane statutes seem prudent and
precautionary rather than strictly necessary. That those persons and their
rights are not mentioned in the white cane statutes would be a weak and
artificial basis of statutory construction upon which to deprive them of the
minimum protection afforded them under pre-existing law. On the other hand,
the provision that failure to use compensatory devices is not contributory
negligence or evidence thereof is innovative and desirable. The reason is
hard to find for penalizing the disabled who do not use such devices, for
whatever cause—lack of knowledge about their existence or how to use them,
embarrassment at becoming conspicuous, or a finding by the individual that
the devices are not helpful to him. It seems particularly unjust to penalize
those who have not had or do not have the opportunity to receive training in
their use. The right to live in the world should not be made to depend on
the use of these compensatory devices.
For the same reasons, the provisions in the Arkansas and Arizona white cane
statutes requiring the blind to use these devices and making the requirement
penally enforceable should be repealed. If this objective is to be attained,
it should be by educating the blind in the techniques of using the devices
and in their values.409

407 Nineteen states provide that the violation of the statutory provisions
is a misdemeanor, without specifying the penalty to be imposed upon
conviction. Alabama, Arizona, California, Georgia, Idaho, Louisiana,
Minnesota, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia.
Eleven states in addition to making the violation a misdemeanor, specify the
permissible bounds of punishment which is limited to a fine. Arkansas,
Colorado, Connecticut, Indiana, Iowa, Kentucky, Maryland, Massachusetts,
North Dakota, Tennessee, Texas. Eight states, after declaring violations to
be misdemeanors, provide for money fines and/or jail sentences as
punishment. Alaska, Florida, Kansas, Maine, Michigan, Mississippi, Missouri,
West Virginia. See note 369 supra for the applicable statutes.
¦*08 Delaware, Hawaii, Illinois, New Hampshire, New Jersey, New Mexico, New
York, Oregon, Utah, Washington, Wisconsin. See note 369 supra for the
applicable statutes.
409 The Arizona statute, while penally requiring the blind person to use a
compensatory device, at the same time declares such unaided travel not to be
contributory negligence or evidence thereof. Thus, the blind pedestrian is
criminally liable for his failure to take the prescribed action to protect
his person while he is not disabled in the civil courts from recovering for
the injuries which he suffers as a result of his breach of a legal duty.
There are also some odd variances in draftsmanship. In Arkansas, cane users
are given the right of way "travelling along or across the streets and
highways"; it is only when "walking along the highways and streets" without
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The provision about the way in which the cane is to be held—that it must be
in a raised and extended position—should be eliminated. It is not
necessarily adapted to increasing the visibility of the cane by drivers,
unnecessarily denies the use of the cane while crossing streets and highways
as a travel aid in the ordinary way to avoid obstructions and trenches, and
creates a certain danger for oncoming pedestrians on crowded streets.
The requirement that the driver stop before coming within a specified
distance of the disabled pedestrian or that, without mentioning the
distance, to come to a full stop immediately upon approaching the disabled
pedestrian, has the advantage of laying down an objectively determinable
standard and one which obviously contributes to the safety of the
pedestrian. Some question might be raised, however, as to whether this
requirement is too mechanical and exacts of the driver more than is
necessary for the protection of the pedestrian.
Making the provisions of white cane statutes penally enforceable against
drivers does not add significantly to the achievement of the objectives of
those provisions. It is hard to imagine that the penal sanctions here have a
deterrent effect. The act of running into a disabled pedestrian is not
usually a matter of deliberation or design. When it is, more drastic
sanctions are in order and are already provided elsewhere in the law. The
white cane statutes deal with accidents: with reducing their number by
notice to the driver of the physical condition of the pedestrian; with
allocating the cost of them, when they do occur, to the drivers and thence
to the insurance companies; and with implementing the right of the disabled
to live in the world by giving them a right of way in traffic and
minimizing, if not eliminating, the ordinary concepts of negligence law. As
a practical matter, too, law enforcement agencies are very reluctant to
prosecute. It was only after a vigorous campaign of pressure by an
organization of the blind that the Berkeley Police Department and the
Alameda County District Attorney's office finally proceeded with a
prosecution in 1965, under California's white cane law, which is located in
the Penal Code and declares breaches to be a misdemeanor,410 of a motorist
who had run down and killed a blind white cane user at an intersection. The
judge, who tried the case without a jury and found the motorist guilty as
charged, sentenced him to one hour's probation.411

In Arizona, the penal sanction applies to the blind pedestrian without
compensatory device when he is walking on a street or highway." It is only
at intersections that the blind cane user is given the right of way; and it
is only while the disabled pedestrian is "on the highways that failure to
use dog or cane may not" be held to constitute prima facie evidence of
contributory negligence. See note 369 supra for the applicable statutes.
 410	Cax. Pen. Code §§ 643, 643a, 643b.
 411	People v. McGlynn, No. C-8471, Municipal Ct. for the Berkeley-Albany
Judicial Dist., July IS, 1965.







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CONCLUSION

Writers on the law of torts tell us that tort law, always particularly
responsive to changing social conditions, is now reaching a new stage in its
development.412 Originally concerned primarily with the protection of
property and land, it came to focus, in the period of the industrial
revolution, on other forms of property and on injuries to the person,
shifting emphasis from the kind of interest infringed to the kind of conduct
which created the injury.413 Today, when millions of individuals are exposed
to traffic, industrial, and many other kinds of accidents, which they are
more or less powerless to prevent, individual responsibility for them based
on the kind of conduct which brought them about is giving way to community
responsibility based on the fact of harm. In accommodating to this change
and in contributing to it, concepts of negligence have undergone a
transformation; liability has been imposed on the industry the operations of
which created the risk; private insurance carriers have assumed the burden
and distributed the costs of liability; and social insurance has
increasingly entered the field to protect men against hazards of old age,
survivorship, unemployment, and disability—hazards over which the individual
has little or no control.414 Does the law of torts today in its dealings
with the physically disabled reflect these broad social and legal changes,
and especially, how does it stand with respect to the policy of integrating
the disabled into the social, economic, and physical life of the community?
This is the central question to be asked in reviewing many other fields
affecting the disabled as well. Does the law of torts in its basic concepts
and current application consciously reject that policy, treat it as a matter
of indifference, passively acquiesce in it, or actively implement it? Among
these alternatives, it is clear that the courts do not

412p1eming, Torts 108 (3d ed. 1965); 2 Harper & James, Torts § 12.1 (19S6);
Friedmann, Law in a Changing Society ch. 5 (1959). 413 Friedmann, op. cit.
supra note 412.
^Ibid.; Fleming, op. cit. supra note 412, at ch. 6; 2 Harper & James, op.
cit. supra note 412, ch. 11-13; Prosser, Torts ch. 1, 4 (3d ed. 1964).
Beyond current forms of liability insurance and the social insurance lies
loss insurance. Professor Friedmann. writes: "Especially in the main
countries which have introduced compulsory liability insurance for motor car
operators, the. effective shift of liability from the driver to the
insurance company has increasingly raised the question whether liability
insurance should not be openly turned into loss insurance. Loss insurance
means an abandonment of the principle of individual tort responsibility and
frank substitution of compulsory insurance for loss incurred as a result of
certain operations. Administration replaces to that extent civil litigation
and an element of social insurance is injected into this sphere of private
relationships .... There is increasing support for the idea that the social
importance of traffic accidents justifies the transfer of this complex of
legal relationships from the private to the public sphere. Insurance against
traffic accidents in that conception becomes assimilated to insurance
against industrial accidents which has for many years been separated in all
common law countries from general tort liability and turned into a social
insurance." Friedmann, op. cit. supra note 412.








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react positively to this policy, either by way of support or rejection.
Indifference and acquiescence also do not accurately describe the judicial
attitude. Unawareness is the precise characterization. In the cases, there
is nothing like a systematic examination of the policy and its implications
for the law of torts. One must scour hard to find an occasional reference to
it.
Yet integration is the avowed policy of the land. However imperfectly and
variously carried out, it is expressed in the self-care and self-support
provisions of the Social Security Act;415 the sprawling rehabilitation
programs of the nation and states;416 the orientation and rehabilitation
centers now multiplying across the country; the programs for the education
of the disabled in the public schools; the opening up, still quite
incompletely in many areas, of state and federal civil service to the
disabled on a non-discriminatory basis;417 special statutes striking down
artificial and arbitrary barriers to the employment of the disabled as
teachers in the public schools;418 and the increasing official and
unofficial acceptance of disabled persons on a basis of their individual
merits. In the past, the courts have been the dominant force in the creation
of the substantive rules of conduct and liability. This has been true
generally and specifically with respect to the physically disabled, and
their rights to be abroad in the land. In fact, in earlier periods and in
many jurisdictions, their rules on this subject embodied a policy in advance
of the times. The legislature has now increasingly entered the field.
Neither as a matter of the independent judicial role nor as a matter of
independent judicial wisdom should the courts disregard the policy of
integration thus declared by the legislature; rather decisional law should
not only be brought into harmony with that policy but should give it active
aid and comfort.
To recognize, as the House of Lords recently did in the Haley case,419 and,
as many American courts have done long since,420 that social integration of
the disabled is coming into practice and that considerable and
ever-increasing numbers of the severely disabled are venturing into the
community, and to adapt the law to that practice, is in a sense inevitable—
and inevitably slow in some jurisdictions. But these judicial decisions are

41b 79 Stat. 286,42 U.S.C. 303, 1201, 1351 (Supp. 1,196S). 410 79 Stat.
1282, 29 U.S.C. § 31-45 (Supp. I, 1965).
417 The Chavich Case—Outlook for Blind Teachers, The Braille Monitor, Aug.
1965, p. 49.
4*8 cal. Educ. Code § 13125; Mass. Gen. Laws Ann. ch. 15, § 19a (Supp.
1965); N.Y. Educ. Law § 3004; Pa. Stat. Ann. tit. 24, § 12-1209 (1962).
 419	Haley v. London Elec. Bd., [1965] A.C. 778 (1964).
 420	See Balcom v. City of Independence, 178 Iowa 685, 696, 160 N.W. 308,
1310 (1916) ; Sleeper v. Sandown, 52 NJ3. 244, 251 (1872); Shields v.
Consol. Gas Co., 193 App. Div. 86, 183 N.Y. Supp. 240 (1920); Masterson v.
Lennon, 115 Wash. 305, 308, 197 Pac. 38, 39 (1921).







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a response to the fact and not to the policy, to what is and not also to
what ought to be. The demands of the policy are what now summon the spirit
of reform and acknowledgement of the role of the legislature in the law of
torts as it applies to the disabled.
Such reform would not necessarily entail casting aside the traditional
framework of the law of negligence, though that might help. What is of
utmost importance about carrying on the judicial analysis and discussion of
the rights of the disabled to live in the world in the concepts and catch
phrases of the law of negligence—unreasonable risk of harm, fault, due care,
reasonable man of ordinary prudence, contributory negligence, greater
caution, foreseeability—is not just that individual volition and personal
conduct are stressed in areas in which they are no longer of paramount
significance. The important point is that these concepts and phrases do not
place in sharp relief the social policy at stake. Indeed, they come
dangerously close actually to obstructing the view of that policy. The
question to be asked is not whether the defendant created an unreasonable
risk of harm, but whether he interfered with the effectuation of the policy
of the social integration of the disabled; not whether the plaintiff
conducted himself as a reasonable man of ordinary prudence acting in the
light of all the circumstances, but whether he acted pursuant to his right
to be a part of his community. Such a transformation of the forms and tests
to be applied by the judges would not remove all legal limitations on the
conduct of the disabled person. Other policies regarding what the English
court of appeals called the ordinary transactions of life, such as those
related to the need to dig trenches in the streets, would have to be given
their necessary scope. The policy of integration, too, has its own built-in
limitations: It cannot be pushed beyond the physical capacity of the
disabled. But implementation of that policy does mean that many acts now
regarded by those who are not disabled as unreasonable and foolhardy, but
which nevertheless are within the disabled person's sense of the risks he
must or would run to regain the life-bestowing benefits of the mainstream,
would not be taken at his cost, or even at the cost of the trench-digger,
but at the cost of the community.
The same result could be achieved also, it is recognized, within the
traditional framework of tort law by reading the policy into the existing
tests, by declaring reasonable that conduct of the disabled person which is
in conformity with the policy, and unreasonable that conduct of the
defendant which interferes with the policy. This method of reform fits in
with the historic mode of the common law in adapting to changed social and
economic conditions. By it, the reform can be accomplished gradually,
without any appearance of discontinuity in the law, and within all the
conservative safeguards of case-by-case trial. On the other hand, this







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method of reform tends to obscure, not only from everybody else, but from
the judges themselves, the changes that are necessary and that are being
made. It confuses the new direction by using the old signposts. The hands
are less likely to be the hands of Esau if the voice is that of Jacob.
Basic determinants of decisions in the law of torts, are, textwriters agree,
morality, admonition, compensation, imposition of costs on those who have a
capacity to bear them, and the interest of furthering desirable activity
without imposing disproportionate burdens on any individuals or groups.421
Some of the overtones and some of the partially buried presuppositions of
the reasonable man formula are moralistic and individualistic, deriving from
the origins of modern negligence law in the industrial revolution and
concomitant ethical, economic and political philosophy. In the era of
unrestricted free enterprise, the law of torts moved toward the position
that there could be no liability without fault and no fault without personal
blameworthiness.422 Dean Prosser emphasizes that personal fault has become,
or is becoming, legal or social fault—"departure from the conduct required
of a man by society for the protection of others"423—and that legal or
social fault is giving way to the notion that the primary task is to decide
which interest should prevail "even where no one is at fault."424 But the
turn of the century is still turning; and the process of discarding fault
liability is far from complete. In considering what is desirable or possible
social policy, great weight will always have to be given to the "ethical or
moral sense of the community, its feeling of what is fair and just."425
Today the integration policy is beginning to rest on such community
feelings. But fault analysis is remarkably fruitless where there is no
fault. Whether the disabled pedestrian or the city or its insurance carrier
should bear the cost of an injury to the pedestrian resulting from a hazard
in the street created by the city is a question of social policy, not of
morality. Is the policy of integration of such social importance that it
should outweigh the policy, also judged in terms of its social importance,
of allowing public bodies which go about digging sewer ditches and opening
other holes in the

4212 Harper & James, op. tit. supra note 412, at § 11.5; Prosser, op. tit.
supra note 414, at § 4.
422	Professor Fleming writes that, in the era of the industrial
revolution, "the axiom no liability without fault was quickly raised to a
dogmatic postulate of justice, because it was best calculated to serve the
interests of expanding industry and the rising middle class, in relieving
them from the hampering burden of strict liability and conducing to that
freedom of individual will and enterprise which was at the forefront of all
contemporary aspirations." Fleming, op. tit. supra note 412, at 108.
423	Prosser, op. tit. supra note 414, at § 4. 42* Ibid.
425 2 Harper & James, op. at. supra note 412, § 11.5, at 793.








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street to do so without the burden, be it slight or great, of seeing to it
that the disabled, among other people, will not be injured thereby.
Ideas of compensating the victim and admonishing the wrongdoer are basically
linked to presuppositions about fault. The wrongdoer, that is the party who
was at fault, must compensate the victim, that is, the party who was
innocently going about his business, for the wrong done. Ideas of
compensation, punishment, and prevention shade into each other. The
admonitory objective of the law of torts today aims at reducing accidents by
governing future conduct through the imposition of liability. This, however,
is a one way street. It can have a deterrent impact only if liability is
imposed on the defendant. The disabled prospective plaintiff does not wait
to read the latest negligence decision before going out into the streets to
mail a letter, catch a bus, or visit a friend. Even if he did do so and
could understand it, the chances are good that he would reject it. The
courts' notions of a reasonably prudent disabled person often do not agree
with the notions of the reasonably prudent disabled person himself. He, for
the most part, figures out what is convenient, possible, or safe for him,
sometimes with the advice of experienced and knowledgeable persons, not
infrequently on the basis of his own individual trial and error. On the
other hand, it is the business of liability-conscious cities, insurance
carriers, and construction and transportation companies, to keep abreast of
the latest judicial decisions with an eye to altering their operations so as
to avoid or reduce liabilities.
So with the distribution of the costs of accidents. The plaintiff generally
cannot bear them personally and generally does not carry insurance against
them. To the extent that he can bear them they may be ruinous. The
defendant, on the other hand, a city, or a construction or transportation
company, a store, business, or other place of public accommodation, can
transmit the cost to a wider public by means of prices, rates, taxes or
insurance. This also goes for the automobile driver, who, though he is only
somewhat better off than the disabled pedestrian his car struck down, yet is
usually covered by insurance. In the end, those who have the capacity to
bear the costs must do so. Even aside from this principle of economic
necessity, the cost of social policy should be borne by society. If the
policy of integration is socially valuable, then it should be financed by
the public generally, least of all by the necessitous disabled traveler.
Thus, while the individualistic, moralistic, fault bases of the reasonable
man doctrines of the law of torts have no particular relevance to most
aspects of the integration policy, and when they are invoked anyway, they
are today tending more and more to give support to that policy, the
admonitory, compensatory, and cost distribution aspects of the reasonable
man doctrine—as in actual administration they tend to impose the







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liability on the defendant and the cost on the public—move in the general
direction of supporting the policy of integration, though not necessarily
consciously or for reasons that relate to the policy.
As a substitute for the policy of integration, or as a vehicle for
effectuating it, the reasonable man standard suffers from another serious
weakness. However much the courts may instruct juries that the reasonably
prudent man is an idealized mortal, possessing human, not superhuman
virtues, but no human or subhuman weaknesses or depravities; however often
they may repeat that he is an abstraction not to be confused with any
identifiable individual, and especially not with a judge or juror; and
however much they may emphasize that he acts in the light of all of the
circumstances and that he is physically disabled when the plaintiff is, the
jurors are almost entirely able-bodied (blind people are excluded from jury
service), and the judge has sound if somewhat aging limbs, fair enough
eyesight, and, according to counsel, can hear everything but a good
argument. The abstraction they conceive is unavoidably in their image and,
in any event, will be applied through the filter of their experiences and
make-up. Standing on good feet and legs, erect through the strength of taut
muscles, peering through eyes approaching or receding from 20/20 visual
acuity, the judge or juror, or their personified image, provide the blind,
the deaf, the lame, and the otherwise physically disabled with a standard of
reasonableness and prudence in the light of all of their circumstances,
including some often quite erroneous imaginings about the nature of the
particular disability. Created and applied from this disadvantage-point, the
standard contains an inherent weakness which is not overcome by the
occasional taking of testimony about the proper use of a cane or other aids
and devices. The actions of the reasonably prudent man in like circumstances
turn out to be not those taken by the reasonably prudent man actually in the
circumstances, but those which a man not in those circumstances imagines he
would take if he were in them. At the time of judgment, moreover, he is
reasonably ignorant about what they are. In the sense intended by its
author, the statement of Judge Hunt in Davenport v. Ruckman "that the bhnd
have sources of knowledge not available to others"426 is mere superstition.
But in another sense, the statement contains a basic truth: Experience with
disability is a more ready source of knowledge about the disability to those
who have it than to those who do not.
The right to live in the world—to return to Dean Prosser's formulation of
the problem and the proposition with which we began—entails at least a right
of free and safe physical access to it through the use of

42037 N.Y. 568 (1868).








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streets and sidewalks, roads and highways, and the common modes of
transportation, communication, and interchange. It includes as well full and
equal access to places of public accommodation, places designed to
accommodate men in the course of gaining access to the world.
The right to live in the world consists in part of the right to live out of
it. The blind, the deaf, the lame, and the otherwise physically disabled,
have the same right to privacy that others do; not only the right to rent a
home or an apartment, public or private housing, but the right to live in
it; the right to determine their living arrangements, the conduct of their
lives; the right to select their mates, raise their families, and receive
due protection in the safe and secure exercise of these rights. Some of the
Englishmen whose houses were their castles, one may suppose, were physically
disabled. At least Coke never said aught to the contrary. It was the
ligeantia, not the visual acuity, which counted.
But the world in which the disabled, too, have a right to live is also on
the streets, the highways and byways, in public buildings, and other public
places, in the schools and colleges, in the public service and private
callings, in the factories, shops and offices, in short, in all the places
where men are, go, live, work, and play. The policy of the law, whether made
by Congress or by the courts, whether carried out by executive or judicial
action, whether implemented through the traditional formulas of the law of
torts, the rhetoric of the policy of integration, or the human, natural, or
inalienable rights of the Declaration of Independence, the Abolitionist
Crusade, the thirteenth, fourteenth, and fifteenth amendments, and the civil
rights revolution of today—the policy of the law should be by negative ban
and positive fostering, to permit, enable and encourage men to be a part of
their communities to the full extent of their physical capacities. The law
of torts should link its labors to this conception.
It is no right of substance, it is no policy of integration, if the disabled
are not entitled to this. It is no world with fewer appurtenances and access
more narrowly defined. Without that right, that policy, that world, it is no
living.

APPENDIX

MODEL WHITE CANE LAW

§ 1—It is the policy of this State to encourage and enable the blind, the
visually handicapped, and the otherwise physically disabled to participate
fully in the social and economic life of the State and to engage in
remunerative employment.
§ 2—'(a) The blind, the visually handicapped, and the otherwise physically
disabled have the same right as the able-bodied to the full and free use of
the streets, higways, sidewalks, walkways, public buildings, public
facilities, and other public places, (b) The blind, the visually
handicapped, and the other






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wise physically disabled are entitled to full and equal accommodations,
advantages, facilities, and privileges of all common carriers,- airplanes,
motor vehicles, railroad trains, motor buses, streetcars, boats or any other
public conveyances or modes of transportation, hotels, lodging places,
places of public accommodation, amusement or resort, and other places to
which the general public is invited, subject only to the conditions and
limitations established by law and applicable alike to all persons, (c)
Every totally or partially blind person shall have the right to be
accompanied by a guide dog, especially trained for the purpose, in any of
the places listed in section 2(b) without being required to pay an extra
charge for the guide dog; provided that he shall be liable for any damage
done to the premises or facilities by such dog.
§ 3—The driver of a vehicle approaching a totally or partially blind
pedestrian who is carrying a cane predominately white or metallic in color
(with or without a red tip) or using a guide dog shall take all necessary
precautions to avoid injury to such blind pedestrian, and any driver who
fails to take such precautions shall be liable in damages for any injury
caused such pedestrian; provided that a totally or partially blind
pedestrian not carrying such a cane or using a guide dog in any of the
places, accommodations or conveyances listed in section 2, shall have all of
the rights and privileges conferred by law upon other persons, and the
failure of a totally or partially blind pedestrian to carry such a cane or
to use a guide dog in any such places, accommodations or conveyances shall
not be held to constitute nor be evidence of contributory negligence.
§ 4—Any person or persons, firm or corporation, or the agent of any person
or persons, firm or corporation who denies or interferes with admittance to
or enjoyment of the public facilities enumerated in section 2 or otherwise
interferes with the rights of a totally or partially blind or otherwise
disabled person under section 2 shall be guilty of a misdemeanor.
§ 5—Each year, the Governor shall take suitable public notice of October IS
as White Cane Safety Day. He shall issue a proclamation in which:
 (a)	he comments upon the significance of the white cane;
 (b)	he calls upon the citizens of the State to observe the provisions of
the White Cane Law and to take precautions necessary to the safety of the
disabled;
 (c)	he reminds the citizens of the State of the policies with respect to
the disabled herein declared and urges the citizens to cooperate in giving
effect to them;
 (d)	he emphasizes the need of the citizens to-be aware of the presence
of disabled persons in the community and to keep safe and functional for the
disabled the streets, highways, sidewalks, walkways, public buildings,
public facilities, other public places, places of public accommodation,
amusement and resort, and other places to which the public is invited, and
to offer assistance to disabled persons upon appropriate occasions.

§ 6—It is the policy of this State that the blind, the visually handicapped,
and the otherwise physically disabled shall be employed in the State
Service, the service of the political subdivisions of the State, in the
public schools, and in all other employment supported in whole or in part by
public funds on the same terms and conditions as the able-bodied, unless it
is shown that the particular disability prevents the performance of the work
involved.







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-----Original Message-----
From: blindtlk-bounces at nfbnet.org [mailto:blindtlk-bounces at nfbnet.org] On
Behalf Of Steve Jacobson
Sent: Friday, July 16, 2010 8:59 AM
To: Blind Talk Mailing List
Subject: Re: [Blindtlk] Reference needed

Dave,

I am sorry if I am missing something obvious here, but I again do not find
the text of the article.  I see only lines such as

HeinOnline -- 54 Cal. L. Rev. 841 1966 

which are the same lines that I saw in the PDF.

Best regards,

Steve Jacobson

On Fri, 16 Jul 2010 07:56:58 -0500, Hyde, David W. (ESC) wrote:

>The file opened fine as a PDF with Adobe 9 for me. Here it is attached as a
txt file.


>David Hyde, Professional Development Coordinator Wisconsin Center for 
>the Blind and Visually Impaired 1700 W. State Street Janesville WI 
>53546

>608-758-6152 (office)

>608-751-0960 (cell)

>608-758-6169 (fax)

>866-284-1107 ext. 34 (toll free)

>email

>david.hyde at wcbvi.k12.wi.us










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