Watkins v. City of Raleigh

WiNBORNE, J. Taking the evidence shown on this record in the light most favorable to plaintiff, the judgment as- of nonsuit was properly granted. As in Houston v. Monroe, 213 N. C., 788, 197 S. E., 571, we hold that demurrer to the evidence was sustainable “if not upon the principal question of liability, then upon the ground of contributory negligence.” Burns v. Charlotte, 210 N. C., 48, 185 S. E., 443. A city is not an insurer of the safety of its streets and sidewalks. Fitzgerald v. Concord, 140 N. C., 110, 52 S. E., 309; Oliver v. Raleigh, 212 N. C., 465, 193 S. E., 853; Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146. The same principle upon which Houston v. Monroe, supra, rests is applicable here, and is stated in 13 R. O. L., 398-399, as follows: “The existence of a hole or depression, or a material inequality or unevenness, or a gap in a sidewalk or crosswalk may constitute such negligence on *647 tbe part of a municipality as will render it liable to pedestrians for injuries caused thereby. . . . But a municipality cannot be expected to maintain tbe surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions or differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions, or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby. The fact that the surface of a walk may have become uneven from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. So it has been held that a municipality is not liable for injuries to a pedestrian resulting from slipping or stumbling over a niche left in a sidewalk around a growing tree, from which the tree has been removed, or over a piece of stone projecting slightly above the level of a crosswalk.” 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. Russell v. Monroe, 116 N. C., 721, 21 S. E., 550; Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211; Ferguson v. Asheville, supra. He is guilty of contributory negligence if by reason of his failure to exercise such care he fails to discover and avoid a defect which is visible and obvious. Pinnix v. Durham, 130 N. C., 360, 41 S. E., 932; Ferguson v. Asheville, supra. In the instant case the accident happened in the broad daylight of a “perfectly fair day.” At the time and place there was nothing to obscure.plaintiff’s view of the sidewalk. The sun, shining through the leaves of the trees, was casting shadows on the sidewalk. Plaintiff did not notice the shadows any more than seeing the trees, and the sidewalk getting shady. All the evidence shows that if she had looked she could have seen it. She doesn’t know where she was looking at the time. There was sufficient space on each side of the hole for walking. Under all the circumstances, however unfortunate and regrettable the occurrence, the city is not liable. The judgment below is Affirmed. ClaeksoN, SchbNoic, and Seawell, JJ., dissent.