City of Charlotte v. Cole

Seawell, J. In order that plaintiff might recover any amount of the defendant under the cited law, since such defendant was not a party to the original action, it must sufficiently appear that the plaintiff and the defendant were joint tort-feasors in producing the injury, and that judgment has been obtained against the complaining party therefor. In a proper case the defendant may be compelled to contribute to the payment of a judgment theretofore obtained against the joint tort-feasor; hut as to such defendant, the trial is de novo. His negligence and his duty of contribution must be established in the pending action; and except as above stated, he is not barred by any of the proceedings by which negligence was established against the defendant in the prior suit, who thereafter becomes plaintiff in an action for contribution. Plaintiff cannot rely solely upon the issue of negligence found against it in the former trial, any more than it could rely upon the evidence there addressed to that issue as determining the negligent character of the acts or omissions when the time has come for the present defendant to have his own day in court and make his defense. When, therefore, the injury has resulted from negligence, it. is just as necessary as it was in the original action, and as it is in any independent action, that the negligent acts or omissions be specifically stated in order that the court may see whether there has been a breach of duty. Gillis v. Transit Corp., 193 N. C., 346, 137 S. E., 153; Whitehead v. Tel. Co., 190 N. C., 197, 129 S. E., 602; McIntosh, Civil Procedure, pp. 358, 398. Examining carefully the facts upon which negligence is predicated, we are of opinion that the complaint fails to disclose any actionable negligence against the city, and therefore none to which the conduct of defendant, if negligent at all, could have contributed. From what we have said, it follows as corollary that the defendant in the present action is not called upon to divine upon what theory liability *110 was fixed on tbe plaintiff in tbe former action, wbicb terminated in tbe Superior Court without appeal. If tbat liability does not appear from judicial examination of tbe complaint in tbe present action, tbe plaintiff must fail. We gather from tbe complaint tbat tbe obstruction causing tbe injury — a boundary line marker, described as a “stake” protruding three-eighths of an inch from tbe surface of tbe concrete — was not in or on tbe sidewalk constructed and maintained by tbe city, but was in a three-foot wide concrete walkway constructed and maintained by tbe defendants between tbe store building and tbe sidewalk. There is no allegation tbat this approach to defendants’ premises bad been dedicated to tbe public use, accepted by tbe city as a public street, or tbat its use was of a character to charge tbe city with its maintenance. Its designation as a walkway does not have tbat significance. Briscoe v. Power Co., 148 N. C., 396, 62 S. E., 600. In fact, tbe contrary is a fair inference from tbe manner in wbicb tbe negligence is charged. If tbe defendant was negligent in maintaining a marker three-eighths of an inch from tbe surface in bis private walkway, tbat would be, as far as tbe allegations of tbe complaint go, bis sole negligence. We are advertent to tbe allegation contained in tbe latter part of tbe eleventh paragraph of tbe complaint “tbat such division iron stake was in such close proximity to tbe public sidewalk maintained by this plaintiff as to constitute a hazard for members of tbe public lawfully using tbe sidewalk maintained by this plaintiff.” But, considering tbe nature of tbe obstacle from wbicb Mrs. Fisher is said to have received her injury — a marker three-eighths of an inch above tbe concrete near tbe edge of tbe sidewalk — our previous course of decision in comparable cases does not incline us to adopt tbe legal inference of negligence from this alone. Wallcer v. Wilson, 222 N. C., 66, 21 S. E. (2d), 817; Housion v. Monroe, 213 N. C., 788, 197 S. E., 571. Tbe demurrer should have been sustained. Tbe judgment overruling it is Reversed.