Gettys v. Town of Marion

BaRNhill, J. While it is alleged that the upright end of the hollow cylinder composing the meter box has a groove about 1% to 2 inches deep on its upper end in which the lid or cap is supposed to fit when placed thereon, there is no evidence that the cap was not in fact properly placed in the groove or that it was otherwise defective in construction or in maintenance. The plaintiff relies upon the happening of the event as evidence tending to show that the meter box top was not properly placed or was in defective condition by reason of the sand which had *268 washed or blown on it, coupled with the fact that the meter box was placed between the paved portion of the sidewalk and the curb where the land sloped from the curb to the sidewalk. She saw the depression in the ground where the meter box was located before she stepped thereon but could not tell the condition in which the meter box and top was by reason of the sand which had blown over it. Under the circumstances of this case does res ipsa loquiiur apply? If not, the judgment below must be affirmed. The grass plot or tree space between the sidewalk and curb is a part of the street which a municipality is bound to keep in a reasonably safe condition. 43 C. J., 989, sec. 1772; see also L. R. A., 1915 F, 797. In each case the way is to be pronounced sufficient or insufficient as it is or is not reasonably safe for the ordinary purpose of travel under the particular circumstances which exist in connection with that particular case. An obstruction or defect in a sidewalk causing an injury, to be actionable, must be such a one as to make the walk at the point of the accident dangerous or unsafe for a pedestrian using it with due care for his own protection. If the obstruction is of that character municipal responsibility follows upon competent proof of the essential elements of liability . . . obstructions which do not render the sidewalk obviously dangerous or unsafe present municipal negligence as a question <of fact. . . . Necessary obstructions, such as water hydrants, gas plugs, etc., where the cause of injuries, do not make the municipality liable, provided they are not negligently constructed or maintained and ■are not in an improper place. 7 McQuillin Municipal Corp. (2d), sec. 2976. The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence and for negligence only; it is not an insurer of the safety of travelers, and it is required to exercise ■ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition for travel for those using them in a proper manner, 43 C. J., 998, but the municipality will not be liable for every defect or obstruction, however slight or trivial or little likely to cause injury, or for every mere inequality or irregularity in the surface of the way; it is only against danger which can or ought to be anticipated, in the exercise of reasonable care and prudence, that the municipality is bound to guard. ' 43 C. J., 1010. The rule prevailing in this jurisdiction is well stated by Hoke, J., in Fitzgerald v. Concord, 140 N. C., 110, as follows: “The town, however, is not held to warrant that the condition of its streets, etc., shall be at all times absolutely safe. It is only responsible for negligent breach of duty, and, to establish such responsibility, it is not sufficient to show that the defect existed and an injury has been caused thereby. It must *269 be further shown that the officers of the town might have discovered the •defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.” Alexander v. Statesville, 165 N. C., 527, 81 S. E., 763; Brown v. Durham, 141 N. C., 252; Revis v. Raleigh, 150 N. C., 348, 63 S. E., 1049; Johnson v. Raleigh, 156 N. C., 269, 72 S. E., 368; Bailey v. Winston, 157 N. C., 253, 72 S. E., 966; Foster v. Tryon, 169 N. C., 182, 85 S. E., 211; Sehorn v. Charlotte, 171 N. C., 540, 88 S. E., 782; Bailey v. Asheville, 180 N. C., 645, 105 S. E., 326; Gasque v. Asheville, 207 N. C., 821, 178 S. E., 848; Houston v. Monroe, 213 N. C., 788, 197 S. E., 571; Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424. The happening of an injury does not raise the presumption of negligence. There must be evidence of notice either actual or constructive. Seagroves v. Winston, 167 N. C., 206, 83 S. E., 251; Alexander v. Statesville, supra; Love v. Asheville, 210 N. C., 476, 187 S. E., 562. The existence of a condition which causes injury is not negligence per se. Sehorn v. Charlotte, supra. The doctrine of res ipsa loquitur does not .apply in actions against municipalities by reason of injuries to persons using its public streets. City of Natchez v. Cranfield, 124 Sou. Rep., 656. The rules governing the liability of municipalities for personal injuries as herein stated have been applied by this and other courts in water meter cases; Sehorn v. Charlotte, supra; Bailey v. Asheville, supra; City of Wichita Falls v. Lipscombe, 50 S. E. (2d), 867 (Tex.); Gatz v. City of Kerrville, 36 S. W. (2d), 277 (Tex.); Carvin v. St. Louis, 52 S. W., 210 (Mo.); Atlanta v. Hampton, 77 S. E., 393; and in similar cases; City of Natchez v. Cranfield, supra; Foster v. Tryon, supra; City of Covington v. Rosenberg, 197 S. W., 786; 7 McQuillin Municipal Corp. (2d), 2976. It is a matter of common knowledge that municipalities ordinarily place water meter boxes between the paved portion of the sidewalk and the curb and there is nothing in the evidence to warrant an inference that the meter box, upon which plaintiff stepped, was improperly placed ■or that its position was rendered' insecure or that its top slipped out of position on this occasion by reason of faulty construction or negligent maintenance. Nor is there any evidence that the defendant had any notice, either actual or constructive, of any alleged defect in its condition. This being true, this Court would not be justified in holding that the trial court erred in entering judgment of nonsuit. The record discloses that the minute docket in the office of the clerk of the Superior Court of McDowell County contains the following entry : “At close of plaintiff’s evidence, defendant demurs to evidence and moves to dismiss on two grounds; *270 “(1) No evidence of claim filed with, town, “(2) That plaintiff is guilty of sucb contributory negligence as will defeat ber recovery. “Motion is allowed and plaintiff excepts.” Plaintiff excepts to tbe refusal of tbe court to insert in its judgment in detail tbe reasons upon wbicb tbe nonsuit is granted or to insert therein tbe excerpt from tbe minutes. Tbis exception is without merit. Tbe judgment below is Affirmed. ClaeksoN, J., concurs in result.