Walker v. Nantahala Power & Light Co.

Connor, J. Sometime early in December, 1931, the defendant dug a hole in a public street, at the edge of the sidewalk along said street, in the town of Andrews, N. C. The earth taken from the hole was thrown on the sidewalk, and remained there. Following a rain, mud accumulated on the sidewalk opposite the hole. The sidewalk was five or six feet wide, and had been covered with saw-dust. Neither the street nor the sidewalk was paved. Plaintiff, a resident of the town of Andrews, while walking along the sidewalk, before daylight on the morning of 15 December, 1931, slipped because of the mud on the sidewalk, and fell into the hole, which was five or six feet deep. As the result of his fall into the hole, plaintiff’s left hip was dislocated, and badly injured. At the time of the trial, in August, 1932, plaintiff could not walk without the aid of crutches. He is now about 49 years of age. He is a merchant. His injuries are permanent. The hole in the street, at the edge of the sidewalk, was dug by the defendant about seven days before the plaintiff was injured. He know the location of the hole, and knew that it was not covered or enclosed. He had passed along the sidewalk opposite the hole, at least three times a day since the hole was dug by the defendant. He also knew that earth taken from the hole had been thrown on the sidewalk, and that mud had accumulated on the sidewalk, as the result of rain falling on this earth. *803 Lie was walking on tbe sidewalk, and not on tbe street, at tbe time be slipped and fell in tbe bole. There was no evidence tending to sbow tbat plaintiff was temporarily inadvertent to tbe location of tbe bole, or to tbe presence of mud on tbe sidewalk, at tbe time be slipped and fell into tbe bole. Tbe defendant, conceding tbat there was evidence at tbe trial tending to show tbat it was negligent as alleged in tbe complaint, and tbat plaintiff’s injuries were caused by such negligence, contends tbat tbe evidence introduced by tbe plaintiff, shows tbat be contributed by bis own negligence to bis injuries, and tbat for this reason there was error in tbe refusal of tbe trial court to allow its motion for judgment as of nonsuit. This contention cannot be sustained. There ivas no evidence tending to show that plaintiff was negligent as alleged in the answer. He was walking on the sidewalk as be bad a right to do. There were no conditions confronting him which required him to leave the sidewalk, and walk on the street, for bis own safety. He bad no reason to foresee that be would slip, and fall into the bole at the edge of the sidewalk. But for the negligence of the defendant as alleged in the complaint, plaintiff would not have been injured. There was no error in the refusal of the trial court to allow defendant’s motion, and in submitting the evidence to the jury. Goldstein v. R. R., 188 N. C., 636, 125 S. E., 177; Seagraves v. Winston, 170 N. C., 618, 87 S. E., 507; Garrick v. Power Co., 157 N. C., 378, 72 S. E., 1065. Other assignments of error which were discussed on tbe argument and in tbe briefs for defendant, have been considered. They cannot be sustained. The judgment is affirmed. No error.