Wall v. City of Asheville

ClaeksoN, J. We think there was error in granting the nonsuit in the court below. On a motion to nonsuit, the evidence tending to support plaintiff’s cause of action will be considered in the light most favorable to plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. The first question involved: Was there sufficient evidence of negligence on the part of defendant proximately causing the death of plaintiff’s intestate and should an issue have been submitted to the jury with respect thereto? We think so. The burden on the question of negligence is on the plaintiff, and as to contributory negligence on defendant. ' In Bunch v. Edenton, 90 N. C., 431 (434), Merrimon, J., speaking for the Court, said: “It was the positive duty of the corporate authorities of the town of Edenton to keep the streets, including the side-walks, 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 places and things very near and adjoining the streets, shall be guarded against by proper railings and barriers. Positive nuisances on or near the streets should be forbidden under proper penalties, and, when they exist, should be abated. . . . (p. 435). The side of the street is a material part of it, and must be kept free from danger, however the same may arise, as well as other portions of the street. Pits and other dangerous places immediately adjoining it and near to it make it perilous, and such places are nuisances. When these are permitted to exist and the streets are not properly protected against them, the latter are not in reasonable repair.” Russell v. Town of Monroe, 116 N. C., 720; *169 Dillon v. Raleigh, 124 N. C., 184 (188-189) ; Fitzgerald v. Concord, 140 N. C., 110; Brown v. Durham, 141 N. C., 249; Bailey v. Winston, 157 N. C., 252; Alexander v. Statesville, 165 N. C., 527 (533); Darden v. Plymouth, 166 N. C., 492; Graham v. Charlotte, 186 N. C., 649; Goldstein v. R. R., 188 N. C., 636; Willis v. New Bern, 191 N. C., 507 (511); Speas v. Greensboro, 204 N. C., 239; Gasque v. Asheville, 207 N. C., 821 (829) ; Doyle v. Charlotte, 210 N. C., 709 (711); Whitacre v. Charlotte, 216 N. C., 687; Barnes v. Wilson, 217 N. C., 190. Tbe Bunch case, supra, has been the unbroken law in this jurisdiction and the principle reiterated in Radford v. Asheville, post, 185. In 43 C. J., part see. 1837, at p. 1062, we find: “The precaution should be sufficient to give such warning as will reasonably notify all persons using the street that the danger is there, and whenever a barrier or guard rail is erected, it should be of such a character and placed in such position in reference to the use of the street as ivill afford protection, and not produce a peril to persons passing on the way.” (Italics ours.) Sec. 2046, p. 1286: “In case of an accident occurring because of an unguarded or unlighted opening, pitfall, or obstruction on a sidewalk or driveway, it is ordinarily a question for the jury whether, under the circumstances of the particular case, it was defendant’s duty to have guards, barriers, or lights at the place of the accident for the protection of travelers; whether there were guards, barriers, or lights; whether they were adequate or sufficient for the purpose,” etc. In Dowell v. Raleigh, 173 N. C., 197 (202-203), it is stated: “But the city cannot be held liable unless it had or should have had notice of the defect, if one existed. ‘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. 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 dili *170 gence.’ Fitzgerald v. Concord, 140 N. C., 110 (citing and quoting 1 Sb. and Eedf., sec. 369).” Gasque v. Asheville, supra, pp. 828-829. The second question involved: Was the evidence sufficient to hold plaintiff’s intestate guilty of contributory negligence as a matter of law ? We think not. We think the question of contributory negligence was one for the jury to pass on, under proper instructions. In Groome v. Statesville, 207 N. C., 538 (540), Schenck, J., speaking for the Court, says: “ 'If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way, with knowledge of the danger, constitutes contributory negligence. . . . And where a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery.’ Dunnevant v. R. R., 167 N. C., 232; 45 C. J., 961.” The generally accepted definition of “contributory negligence,” citing a wealth of authorities, is thus stated in Black’s Law Dictionary, 3rd Ed., p. 1231: “Contributory negligence, when set up as a defense to an action for injuries alleged to have been caused by the defendant’s negligence, means any want of ordinary care on the part of the person injured (or on the part of another whose negligence is imputable to him), which combined and concurred with the defendant’s negligence, and contributed to the injury as proximate cause thereof, and as an element without which the injury would not have occurred.” Battle v. Cleave, 179 N. C., 112 (114); Boswell v. Hosiery Mills, 191 N. C., 549; Elder v. Plaza Ry., 194 N. C., 617. In Absher v. Raleigh, 211 N. C., 567 (568-9), the question of contributory negligence is fully discussed, citing authorities. It is there said: “ 'A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence and take away the question of negligence and contributory negligence from the jury. The right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for the jury and not the Court.’ Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.” For the reasons given, the judgment of the court below is Eeversed. Stacy, 0. J., and BaeNhill and WiNBOBNE, JJ., dissent.