Fitzgerald v. Concord.

Hoke, J., after stating the case: There was error in directing a nonsuit in this case and the plaintiff is entitled to have her cause submitted to a jury. The governing authorities of a town are charged with the duty of keeping their streets and sidewalks, drains, culverts, etc., in a reasonably safe condition ; and their duty does not end at all with putting them in a safe and sound condition originally, but they are required to keep them so to the extent that this can be accomplished by proper and reasonable care and continuing supervision. Code, sec. 3803; Bunch v. Edenton, 90 N. C., 431; Russell v. Monroe, 116 N. C., 720. In Bunch's case, Merrimon, J., for the court, says: “It was the positive duty of the corporate authorities of the town of Edenton to keep the streets, including the sidewalks, in 'proper repair/ that is, in such condition as that the people passing and repassing over them might at all times do so with reasonable ease, speed and safety. And proper repair implies also that all bridges, dangerous pits, embankments, dangerous walls, and the like perilous things very near and adjoining the streets, shall be guarded against by proper rail *113 ings and barriers. Positive nuisances on or near the streets should be forbidden under proper penalties, and, when they exist, should be abated.” 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 a defect existed and an injury has been caused thereby. It must be further shown that the officers of the town “knew, or by ordinary diligence might have discovered, the defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.” It will be observed that actual notice of a dangerous condition or defective structure is not required, but notice may be implied from circumstances, and will be imputed to the town if its officers could have discovered the defect by the exercise of proper diligence. As pertinent to the present inquiry, it is stated in 1 Shearman & Red. Neg., sec. 369: “Unless some statute requires it, actual notice is not a necessary condition of corporate liability for the defect which caused the injury. Under its duty of active vigilance, a municipal corporation is bound to know the condition of its highways, and, for practical purposes, the opportunity of knowing must stand for actual knowledge. Hence, when observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words, they are presumed to have notice' of such defects as they might have discovered by the exercise of reasonable diligence.” And again, in the same section: “It is only reasonable that notice of latent defects should not be so readily presumed from their continuance as open and obvious defects. If these were so dangerous as to challenge immediate attention, the jury is justified in finding a very shorty continuance of such condition to constitute sufficient notice. Active vigilance is *114 required to detect defects from natural decay in wooden structures, like bridges, plank sidewalks and the like, which will necessarily become unsafe from age, but the most that ought to be required is the use of ordinary diligence by making tests and examinations, with reasonable frequency, to ascertain whether they are safe or not. It has been held that notice will not be implied unless the defect was so open and noticeable as to attract the attention of passers-by. But travelers are not charged with any duty to search for defects in a highway as road officers are, and the better rule, in our judgment, is that knowledge of a defect may be inferred, notwithstanding it may have escaped the attention of all travelers, or even of an officer frequently passing by. It is not a question whether all passers-by actually notice a defect, but whether it was noticeable.” And the decided cases support the doctrine as stated. Jones v. Greensboro, 124 N. C., 310, 313; Kibele v. Philadelphia, 105 Pa., 41; Kunz v. Troy, 104 N. Y., 346; Pomfrey v. Saratoga, ibid., 459. On the question of notice implied from the continued existence of a defect, no definite or fixed rule can be laid down as to the time required and it is usually a question for the jury on the facts and circumstances of each particular case, giving proper consideration to the character of the structure, its material, the time it has been in existence and use, the nature of the defect, its placing, etc. We have adverted only to the evidence most favorable to the plaintiff’s demand, as this is required where a nonsuit is directed on the defendant’s motion. Applying the above principles to the testimony so considered, we are of opinion, as stated, that the plaintiff is entitled to have the question of the defendant’s responsibility submitted to the jury under proper instructions from the court, and to that end a new trial is awarded. New Trial.