Ovens v. City of Charlotte

Walker, J. Plaintiff brought this action to recover damages for injuries received while driving along a street or avenue in the city of Charlotte, known as Ransom Place, and striking a stump which overturned his buggy and threw him to the ground. He alleges that the city had cut down a tree which stood in one *333 of tbe small parks or places in tbe avenue, leaving a stump wbicb projected a little in tbe driveway, tbougb plenty of space was left for tbe safe and convenient passage of vebieles. Ransom Place was abotit 68 feet wide and 400 feet long, and extended from Morebead Street to Yanee Street. Tbe parks -were not part of tbe driveway, but well defined in tbeir boundaries, and were curbed. Tbe evidence introduced by the plaintiff tended to show that be bad often seen tbe stump, as be lived in Ransom Place very near it, and “there was no trouble about seeing it.” Plaintiff admitted that if be bad been thinking of tbe stump, be could easily have avoided it. He was not looking-for tbe stump, and was driving along and not thinking about it; although be knew that it was there. He was not looking out for anything ahead of him, but thinking of something else. If be bad driven in or near tbe middle of tbe street, and not to tbe extreme -right side, be would not have struck tbe stump. There was an electric light burning at tbe intersection of Ransom Place and Yanee Street, about two hundred feet distant. It would seem clear that plaintiff’s injuries were caused by bis negligent indifference to bis own safety. He was evidently driving carelessly, if not recklessly, and not thinking about what he was then doing. Walker v. Reidsville, 96 N. C., 382, is a ease wbicb closely resembles this one in its facts, and with reference thereto the Court said: “A reasonably prudent and careful man would not forget tbe presence of such danger in bis immediate neighborhood— one that be bad seen and observed every day for more than a fortnight, and but a few hours before be received tbe hurt. He was bound to act upon bis information, and use ordinary care and prudence in shielding and protecting himself from what be knew to be a menacing danger to every one who passed near it. He forgot, and failed to be careful at bis peril, and in bis own wrong. Parker v. R. R., 86 N. C., 221; R. R. v. Houston, 95 U. S., 697; Dillon Mun. Corp., sec. 789; Beach on Cont. Neg., 40. In Bruker v. Covington, 69 Ind., 33, it was held that when a party knows of tbe existence of an open cellar-way in a sidewalk, and attempts to pass tbe place in the night, be will be considered as taking tbe risk upon himself, even if be bad *334 forgotten the existence of tbe obstruction, and if be receive injuries from falling into sucb cellar-way, be is chargeable witb contributory negligence, and cannot recover damages. There are many cases to tbe like effect. Gribble v. Sioux City, 38 Iowa, 390; Wilson v. Charlestown, 8 Allen, 137; Gilman v. Dearfield, 15 Gray, 577; Moore v. Abbott, 32 Me., 46.” But tbe case of Neal) v. Marion, 126 N. C., 412, is more to tbe point, and seems to be decisive of this case. Tbe Court there said that “Tbe plaintiff bad been long a resident of Marion, and bad been thoroughly familiar witb tbe walk, having traveled it hundreds of times, as she testified. Now, if she knew that tbe bole was in tbe path, and at night walked along it, and through forgetfulness carelessly walked into it, she negligently contributed to her own injury. It was not reasonable care on her part to forget sucb a menace to her safety; and even if it should be conceded that tbe town was negligent, if she, through tbe want of proper care and prudence, contributed to her own injury, both parties being negligent, she cannot recover.” Tbe cases of Walker v. Reidsville, supra, and Bruker v. Covington, supra, are cited witb approval by tbe Court, and it distinguishes Russell v. Monroe, 116 N. C., 720, and other cases, because it appeared in them that tbe plaintiff bad no knowledge of tbe defect in tbe street, and, therefore, might well assume that tbe town bad performed its duty and kept its street in proper repair. In this case it appears that tbe plaintiff was grossly inattentive to bis surroundings, not thinking at all about what be was doing, when if be bad exercised any, even tbe least, care to avoid tbe stump, be could have done- so witb tbe greatest ease. Tbe injuries be received when be was thrown from tbe buggy were directly traceable to bis own negligence, and about this no two reasonable minds could differ. There was consequently no error in dismissing tbe action upon tbe evidence. No error.