Hardy v. West Coast Construction Co.

Brown, J. The first four assignments of error are directed to the right of the plaintiff to recover, in any view of the evidence.. All the others are alleged errors in the charge .of the court. *322 Tbe evidence of tbe plaintiff tends to prove tbat tbe defendant company was improving tbe streets of tbe city of Kinston under a contract with the city. It bad been working on tbe day in question at tbe intersection of Washington and McLewean Streets, in order tbat a gas pipe might be laid. During tbe night it rained very bard. About 7 o’clock p. m. a pipe burst at tbe point named and tbe water flooded tbe street. Both defendants, or their representatives, received this notice, and tbe city sent one Wiggins there, who drove a stick in tbe pipe. One Ruken-baker, tbe representative of tbe construction company, went there about 7 o’clock. Seeing Wiggins there, be did nothing more. It further appears tbat during this work, and as a usual custom, a red light was placed as a warning of danger where any point in tbe street, was left in .an unsafe condition, and that a white light was merely an indication tbat there was some object at tbat point, and tbat tbe vehicles should go around it, all of which was well known and understood by tbe citizens and tbe defendants. Witnesses for tbe plaintiff testified tbat there was no red light at tbe excavation, but there was a white light on a pile of sand some distance from tbe point where tbe injury took place. Although tbe two men were sent to tbe place where tbe injury occurred at 7 o’clock tbat night, it appears tbat, even in tbe condition of tbe street at tbat time, no red light or other danger signal or warning to persons not to pass was placed at that' point. Tbe rain accumulated to such an extent later in tbe night tbat water completely covered tbe street at this point, so that there was no difference in appearance of tbe ditch and tbe other part of tbe street, and no one traveling tbe street could tell tbat there was a ditch or excavation. Plaintiff, a physician, was returning home in bis automobile. He testifies tbat be knew tbe work was going on, and tbat be looked cautiously down East Street and, seeing no red light, drove ahead at anywhere from 10 to 15 miles per hour. He observed tbe white light on tbe sand pile and drove around it, according to regulations. His automobile jolunged into tbe deep excavation, completely bidden by water, and seriously injured plaintiff and damaged tbe machine. Taking these facts to be established, we can see no ground for directing a nonsuit or for charging tbe jury tbat there is no evidence of negligence. It is elementary tbat tbe municipal authorities are charged with tbe duty of keeping tbe streets of tbe municipality in a reasonably safe condition, and to tbat end they are required to exercise a careful supervision over fhem. Such authorities must exercise such reasonable supervision over street improvement work as to see to it tbat proper lights at night are placed at excavations and piles of dirt and other obstructions incident to such work. *323 This particular city bas bad a similar experience before, and bad to pay for the negligence of its servants in tbis respect. In Kinsey v. City of Kinston, 145 N. C., 106, it is beld: “It is the positive duty of municipal authorities to beep the public streets in a reasonably safe condition for the use of pedestrians. Tbe city is liable in damages to the plaintiff, wbo, being accustomed to use its sidewalk in going to and from ber work, passed in the morning, and, repassing in the evening about 8 o’clock, was injured by falling into a ditcb wbicb bad been dug across the sidewalk in the intervening time by a contractor for a private person, with notice to and permission of the city, and left without lights, warning signals, or signs at, near, or upon the ditcb.” “While a private person is liable to pedestriaUs for bis negligence in permitting a ditcb dug across tbe public sidewalk of tbe city to remain after nightfall without lights or other warnings, tbe city is also liable for negligence, when, after granting tbe permit, it fails to exercise proper supervision and inspection.” To same effect is Carrick v. Power Co., 157 N. C., 379, where it is beld that a municipality cannot absolve itself from liability to supervise tbe streets when work likely to be dangerous is done on them by an independent contractor. We think these cases settle tbe liability of both defendants upon tbe facts presented here. It is contended by .the defendants that tbe plaintiff is guilty of contributory negligence, upon bis own evidence, and that tbe court erred in not so bolding. Tbe defendant contends that plaintiff was driving over 10 miles an hour at tbe time be fell into the ditcb, in violation of a city ordinance. Plaintiff says be was driving 10, 12, or 15 miles an hour. He seems unable’ to give tbe rate of speed with any accuracy. But, assuming be drove over 10 miles an hour, it does not follow that tbe unlawful speed was tbe cause of bis injury. Plaintiff’s negligence would not bar recovery, unless it was tbe proximate cause of tbe injury. Clark v. Wright, 167 N. C., 646; Sheppard v. R. R. 169 N. C., 239. Tbe court properly instructed tbe jury that if there was excessive speed, and that was tbe proximate cause of tbe injury, to find there was contributory negligence. According to plaintiff’s evidence, be would have driven into tbe ditcb in any event and been injured, whether driving 10 or 15 miles per hour. Tbe real cause of tbe injury was the failure to display tbe red danger light at tbe point where tbe excavation crossed tbe street. We have examined tbe charge, and deem it unnecessary to discuss tbe several exceptions to it. In our opinion, tbe case was presented clearly and fairly to tbe jury. No error.