White v. City of Charlotte

CoNNOR, J. Conceding that Independence Park and its facilities, including the swing from which plaintiff’s intestate fell or was thrown with the result that she suffered the injuries from which she died, are *189 owned, controlled, and operated by tbe defendants in the exercise of a governmental function, and not for a corporate purpose (Atkins v. Durham, 210 N. C., 295, 186 S. E., 330; Parks-Belk Co. v. Concord, 194 N. C., 134, 138 S. E., 599), it does not follow as a matter of law that defendants owed no duty to the plaintiff's intestate and others who had the right to use said facilities for purposes of play or recreation, to exercise reasonable care to provide facilities which were reasonably safe, or that defendants would not be liable to plaintiff for a breach of such duty, if such breach was the proximate cause of injuries which resulted in the death of his intestate (Fisher v. New Bern, 140 N. C., 506, 53 S. E., 342; Warden v. City of Grafton [W. Va.], 128 S. E., 375). Ve are of opinion and so hold that there was no error in the judgment in this case, dismissing the action as of nonsuit, for the reason that there was no evidence at the trial tending to show that the death of plaintiff's intestate was caused by the negligence of the defendants or of either of them. If there was negligence on the part of the defendants, with respect to the construction of the swing, or its location in the park, as contended by the plaintiff, there was no evidence from which the jury could have found that such negligence was the proximate cause of the death of plaintiff’s intestate. Whether she fell or was thrown from the swing while she and her companion were standing on the seat, and “pumping,” because of a jerk which resulted from the slipping of the links in the chains, or because of some inadvertence on her part or on the part of her companion, is purely a matter of conjecture. Juries, as the finders of facts, ought not to be required or permitted to find facts on which legal liability arises, when they must conjecture what the facts are. In the absence of any evidence tending to show negligence on the part of the defendants which was the proximate cause of the death of plaintiff’s intestate, there was no error in the judgment dismissing this action. The judgment is Affirmed.