Goldstein v. Southern Railway Co.

CONNOR, J. Defendants assign as error the refusal of the court to sustain their objection to the testimony of the mayor of Kings Mountain, that he had notified the defendants of the conditions on their right of way and requested them to erect a fence, rail or other guard about the hole for the protection of the public and of the town. This assignment is not sustained. Defendants, as 'a defense to plaintiff’s action, in their answer had denied that they excavated the hole or constructed the concrete bridge, alleging that this was done by the Director General of Railroads during the period of Federal control. Plaintiff alleged negligence not only in the original excavations of the hole, but also in the continued maintenance of it without sufficient guard. It was competent for plaintiff to show that defendants maintained the condition after 1 March, 1920, with express notice of the situation given by the town within whose corporate limits its property was included; Bunch v. Edenton, 90 N. C., 431. Nor was there error in refusing defendant’s motion for nonsuit. This Court held in Bunch v. Edenton, supra, that a town is liable in damages to one who receives an injury by falling into an excavation near the sidewalk (made by the owner of a lot for a cellar) when it appears there was no concurring negligence and the municipal authorities failed to cause to be erected a railing to prevent accidents to passersby. The *639 question as to the liability of the owner of tbe lot upon which the excavation had been made was not presented in this case but the court strongly intimates that such owner was also liable for the damages resulting from the injury. In Monroe v. R. R., 151 N. C., 374, the owner of a lot, on which was a hole or pit, was held not liable to one who came upon the lot as a trespasser or as a mere licensee; but Manning, J., citing Bunch v. Edenton, expressly distinguishes the law as applied in that case from the law as applied to the facts in Bunch v. Edenton. In Monroe v. R. R., plaintiff went upon defendant’s property as a mere licensee and the court held that the owner of the property was under no duty to keep his premises in a suitable condition for those who came upon them solely for their own convenience or pleasure or who were not either expressly invited or induced to come upon the property. In Bunch v. Edenton, the plaintiff was walking upon the sidewalk at night and being unable to see the pit, missed the sidewalk, stumbled and fell into the pit, and was thereby injured. In the instant case, the plaintiff did not go upon defendant’s right of way as a wrongdoer or as a licensee. He was there as the result of an accident. He was rightfully on the road which, although not dedicated as a public road by the owner of the land over which it passed, nor maintained by the public authorities as a public road, had been used by the public for more than five years with the permission of the owner. Defendants, of course, are not liable for the slippery condition of the road nor for the skidding of plaintiff’s car. The proximate cause, however, of plaintiff’s injury was his falling into the hole on defendant’s right of way. If the hole or excavation had not been there or if a fence or rail had been erected between the road and the hole, the plaintiff Would not have been injured. In Autrey v. Southern R. R., the Court of Appeals of Georgia, in an opinion filed 13 March, 1924, 123 S. E., 752, holds the defendant liable in damages to the plaintiff who was injured by falling into a deep and dangerous hole on the defendant’s property as a result of his automobile being deflected from the road on which he was driving. ¥e fail to discover in the evidence offered by the plaintiff any facts upon which the jury could have found that plaintiff was guilty of contributory negligence. There was no concurring negligence, and no railing, fence or other guard to prevent accidents to travelers on the road. The town had requested the defendants to place a railing or other protection along the edge of the road. This defendants had failed to do. Their negligence was the proximate cause of plaintiff’s injury and they are liable to plaintiff for the damages assessed by the jury. No error.