Stultz v. . Thomas

Stacy, I. Considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think his Honor was correct in submitting the case to the jury. Upon trial in the Superior Court, the defendants proposed to show, by several witnesses, the custom prevailing in Winston among other contractors with respect to the precautions used by them in doing work of the same character in which the defendants were engaged. This evidence was excluded, upon objection by plaintiff, and defendants assign such ruling as error. The purpose in offering this evidence, as stated by counsel, was as follows: “We propose to show by the witness that the custom and approved method of placing warnings and guards around newly laid sidewalks is to place ropes next'to the streets and place the same under the plank that leads from the street to the abutting landowners, and place red lights at each end of the work, beginning and ending of the work on the streets, and it is further the custom to put the rope from a post under the plank as testified by these witnesses was done in this case, that that method was approved and in general use.” Section 108 of the ordinances of the city of Winston-Salem provides: “It shall be unlawful for any person, firm, or corporation to make any excavation or do any work which may create or cause a dangerous condi *473 tion in or on or near any street, alley, sidewalk, or public place of tbe city, without placing and maintaining proper guard rails and signal lights or other warnings, at, in, or around the same, sufficient to warn the public of such excavation or work, and to protect all persons using reasonable care from injuries on .account of same.” A failure to discharge an affirmative duty imposed by law has been held by us in a number of cases to constitute-an act of negligence per se (Taylor v. Stewart, 172 N. C., 203); and, where such conduct on the part of the defendant has been shown .or established, it is a question for the jury to say whether or not such negligence is the proximate cause of the plaintiff’s injury. Ridge v. High Point, 176 N. C., 421; Paul v. R. R., 170 N. C., 231; Fox v. Texas Co., 180 N. C., 543; Stone v. Texas Co., 180 N. C., 546, and cases there cited. We do not think that an established use or custom among men engaged in the same line of work can avail as against the positive requirements of the ordinance, or statute. In fact, a breach of a legal duty, or a duty imposed by law, comes within the very definition of negligence; and, if such be the proximate cause of an injury, it constitutes actionable negligence. Drum v. Miller, 135 N. C., 215; Larson v. Ring, 43 Minn., 88; Mallory v. Walker, 77 Mich., 448; 6 L. R. A., 695. In the Mallory case, just cited, the Michigan statute imposed a penalty upon municipalities for failing to make their highways safe for travel. The defendant neglected to provide proper and safe barriers at a dangerous place. The Court held that a general usage or custom as to' placing rails or barriers along a highway embankment is of no' importance in determining the liability of the municipality for failing to provide such barriers at a dangerous place. This is in perfect analogy with the case at bar. We have found no sufficient reason for disturbing the verdict and judgment. No error.