Ferguson Ex Rel. Ferguson v. City of Asheville

Winborne, J. Upon tbe evidence presented on this appeal we are of opinion that the motion for judgment as of nonsuit was improperly-entered in each case. Consideration thereof raises three questions which are determinative of this appeal: (1) Is there sufficient evidence of negligence on the part of defendant to require the submission to the jury of an issue with respect thereto? (2) Is there such evidence of negligence on the part of the plaintiff E. J. Ferguson, Jr., the driver of the automobile, as to insulate any negligence on the part of the defendant as a matter of law ? (3) Is the plaintiff E. J. Ferguson, Jr., guilty of contributory negligence as a matter of law ? The first question is answered in the affirmative, and the second and third in the negative. Smith v. Sink, 211 N. C., 725, 192 S. E., 108. (1) The duties and liabilities of a municipal corporation with respect to defects and obstructions in its streets have been the subject of numerous decisions of this Court.' “The exercise of due care to keep its streets in a reasonably safe and suitable condition is one of the positive obligations imposed upon a municipal corporation.” Speas v. Greensboro, 204 N. C., 239, 167 S. E., 807, and cases cited. In the recent case of Oliver v. Raleigh, 212 N. C., 466, 193 S. E., 853, Barnhill, J., pertinently states: “Each case must be determined upon its merits. All portions of a public street from side to side and end to end are for the public use in the appropriate and proper method, but no greater duty is cast upon the city than that it shall maintain the respective portions of its streets in a reasonably safe condition for the purposes for which such portions of the streets are respectively devoted.” A municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are reasonably safe for travel. Jones v. Greensboro, 124 N. C., 310, 32 S. E., 675; Fitzgerald v. Concord, 140 N. C., 110, 52 S. E., 309; Smith v. Winston, 162 N. C., 50, 77 S. E., 1093; Alexander v. Statesville, 165 N. C., 527, 81 S. E., 763; Sehorn v. Charlotte, 171 N. C., 540, 88 S. E., 782; Graham v. Charlotte, 186 N. C., 649, 120 S. E., 466; Willis v. New Bern, 191 N. C., 507, 132 S. E., 286; Michaux v. Rocky Mount, 193 N. C., 550, 137 S. E., 663; Pickett v. R. R., 200 N. C., 750, 158 S. E., 398; Speas v. Greensboro, supra; Haney v. Lincolnton, 207 N. C., 282, 176 S. E., 573; Oliver v. Raleigh, supra. *574 It is only against danger which can or ought to be anticipated in the exercise of ordinary care and prudence that the municipality is bound to guard. Dillon v. Raleigh, 124 N. C., 184, 32 S. E., 548; Fitzgerald v. Concord, supra; Sehorn v. Charlotte, supra. “It is not an absolute duty imposed on the corporation to light its streets, and when it does so the placing of the lights is left largely to its discretion.” Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211, citing White v. New Bern, 146 N. C., 447, 59 S. E., 992. In the latter case the Court said: “When the streets of a municipality are otherwise reasonably safe, the weight of authority and the better reason are to the effect that neither the absence of lights or defective lights is in itself negligence, but is only evidence on the principal question, whether at the time and the place where an injury occurred the streets were in a reasonably safe condition.” It is not negligence to have shade trees along streets. Pertinent statements are made in Rollins v. Winston-Salem, supra, to which reference may be made. The duty and consequent liability of a municipality to keep its streets in a reasonably safe condition for persons traveling thereon extends to those cases where the obstruction of the street is brought about by persons other than agents of the city. Dillon v. Raleigh, supra; Brown v. Louisburg, 126 N. C., 701, 36 S. E., 166; Raleigh v. R. R., 129 N. C., 265, 40 S. E., 2; Jones v. Balsley, 154 N. C., 61, 69 S. E., 827; Gregg v. Wilmington, 155 N. C., 18, 70 S. E., 1070; Guthrie v. Durham, 168 N. C., 573, 84 S. E., 859; Ridge v. High Point, 176 N. C., 421, 97 S. E., 369; Bowman v. Greensboro, 190 N. C., 611, 130 S. E., 502. After the municipality has notice of the existence of an obstruction, the obligation then arises to exercise ordinary care to make the street reasonably safe. Neal v. Marion, 129 N. C., 345, 40 S. E., 116; Revis v. Raleigh, 150 N. C., 348, 63 S. E., 1049. In the instant case there is evidence tending to show that the ramp was placed for the purpose of affording an entry for vehicles into the adjacent property. If it were so placed by a third party, the liability of the city, if any, would be only secondary. The city’s fault, if any, would not be in the placing of the ramp, but in the failure to exercise its duty to keep the street in a reasonably safe condition. Tested by these principles, the evidence is sufficient to take each case to the jury on the issue of actionable negligence. Its probative force is a question for the jury. (2) On the second question a nonsuit may not be granted unless “it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person,” Stacy, C. J., in Smith v. Sink, supra, and cases cited. Powers v. Sternberg, ante, 41. *575 In the present case there is evidence tending to show that: At the point of the accident the street is straight, level and from twenty-five to thirty feet wide from curb to curb. The ramp extends less than two feet from the west curb. At the time of the accident, there were no other vehicles on the street. Applying the above principle, if, under these circumstances and the conditions surrounding the ramp, the plaintiff E. J. Ferguson, Jr., saw, or by the exercise of reasonable care could have seen the ramp in time to have averted the accident, and the accident followed as a result of his failure so to do, the plaintiff E. J. Ferguson, Jr., would be guilty of such negligence as would insulate any negligence of the defendant in permitting the ramp to remain on the street unguarded, and the defendant would be relieved of liability to both plaintiff E. J. Ferguson, Jr., the driver of the car, and the plaintiff Wanda Ferguson, the guest. On the evidence shown on this appeal, this is a question for the jury. (3) In the exercise of due care a traveler in the absence of knowledge to the contrary has the right to act on the assumption that the street is in a reasonably safe condition for travel. Neal v. Marion, supra; Bell v. Raleigh, 212 N. C., 518, 193 S. E., 712. Nevertheless, a person traveling on a street is required in the exercise of due care to use his faculties to discover and avoid dangerous defects and obstructions, the care required being commensurate with the danger or appearance thereof. Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211; Russell v. Monroe, 116 N. C., 720, 21 S. E., 550, and he is guilty of contributory negligence if by reason of his failure to exercise such care he fails to discover and.avoid a defect or obstruction which is visible and obvious. Pinnix v. Durham, 130 N. C., 360, 41 S. E., 932. “The burden of showing contributory negligence is on the defendant, and motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof.” Hoke, J., in Battle v. Cleave, 179 N. C., 112, 101 S. E., 555; Williams v. Express Co., 198 N. C., 193, 151 S. E., 197; Smith v. Sink, supra. In Lumber Co. v. Perry, 212 N. C., 713, Connor, J., said: “Notwithstanding apparent inconsistencies and even contradictions in the evidence for the plaintiff, when the evidence in any aspect is sufficient to support the contentions of the plaintiff, it should ordinarily be submitted to the jury, and in such case it is error to dismiss the action by judgment as of nonsuit on motion of defendant.” There is conflict of evidence presented on this appeal on the question of the alleged negligence of the plaintiff E. J. Ferguson, Jr. He testifies that the ramp was of the same color as that portion of the street on which it rested, and for that reason the ramp could not be seen, though the lights of his automobile were “all right.” On the other hand, there *576 is testimony tending to show that the ramp had been seen regularly by one walking along the sidewalk. Then, too, the photograph introduced to illustrate the testimony tends to show as a physical fact that the ramp is plainly visible. If, at the time of the accident, while operating his automobile with the lights on it in good condition, the plaintiff E. J. Ferguson, Jr., in the exercise of due care, considering the time, place, condition of traffic upon the street, and the location and surroundings of the ramp, saw or by the exercise of ordinary care could have seen the ramp in time to avert the collision, and as a proximate result of his failure to see the ramp the accident followed, he would be guilty of such negligence as would bar his recovery. Hughes v. Luther, 189 N. C., 841, 128 S. E., 145; Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Davis v. Jeffrey, 197 N. C., 712, 150 S. E., 488; Williams v. Express Co., supra; Speas v. Greensboro, supra; Lee v. R. R., 212 N. C., 340, 193 S. E., 395. With respect to the negligence of the plaintiff, more than one inference may be drawn from the evidence adduced. This presents a question for the jury. The judgment below is Reversed. Sea well, J., took no part in the consideration or decision of this case.