Bailey v. City of Asheville

AileN, T. We have been much impressed by the earnest argument of counsel for the defendant, but upon careful consideration of the record we find no error which would justify a new trial. Two exceptions are relied on. The first is to the reception of evidence showing that the defendant made changes in the condition of the water meter box after the plaintiff was injured, which would have been erroneous under the authority of Lowe v. Elliott, 109 N. C., 581; Myers v. Lumber Co., 129 N. C., 252; Aiken v. Mfg. Co., 146 N. C., 324, cases relied on by the defendant, if the evidence had been admitted on the question of negligence, but this was not done, and, on the contrary, the court carefully restricted the evidence to the identification of.the box and place of injury, for which purpose it was competent. When the evidence was offered and objected to the court said: “The rule would be this: If you offer evidence tending to show that the meter box was at a certain place, and that place is disputed, you can offer evidence to identify the particular place. Of course, its condition at a subsequent time could not be used as a cause of action either, only the condition of the place at the time of the alleged injury would be competent; but as to the identification of the place in evidence, that you may offer. *647 “I will let .ber go on and state wbetber or not there was a bole there, only for the purpose of identity. The court rules that the cause of action is founded upon the conditions existing at the time alleged in the complaint; then the plaintiff’s action must stand or fall by conditions that existed at that time — but as to the contest between the plaintiff and defendant as to wbetber or not there was a meter bole at the place at the time alleged in the complaint, the evidence as to subsequent conditions is admitted for the purpose only — that is, whether there was in existence at the time of the alleged injury such a meter box or place as that described in the complaint. This evidence is only for identification of such place, and the jury are instructed that it is admitted for no other purpose.” The other exception is to the refusal to nonsuit the plaintiff upon the ground that there is no evidence of negligence. The duty of the municipal corporation in reference to streets is stated as follows in Bailey v. Winston, 157 N. C., 259: “A city or town or village must keep its streets in good condition and repair so that they will be safe for the use of its inhabitants or of those entitled and having occasion to use them. If they become unfit for use by reason of defects which could not be anticipated and consequently guarded against, under ordinary circumstances, the municipality should have some notice of the defect, either actual or else implied from the circumstances; and in this connection it must be said that it is the duty of the city (and of course these principles apply generally to all forms of municipalities) to exercise a reasonable and continuing supervision over its streets, in order that it may know they are kept in a safe and sound condition for use. Sometimes notice of their defective condition is actual or express, again it is constructive or implied, where, for instance, the defect has existed for such a length of time as to show that the city has omitted or neglected its plain duty of supervision; and still again, it may be inferred by the jury from the facts in evidence. .This principle is illustrated and was applied in Fitzgerald v. Concord, supra, where it is said, approving 1 Sh. and Ked. on Negligence, 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 seen, 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 been discovered by the exercise of reasonable diligence.’ . . . ‘On the question of notice implied from the continued existence of a defect, no definite or fixed rule can *648 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,’ and other considerations not necessary to be stated.” Is there evidence that the defendant failed to perform this duty? The meter box was placed on the sidewalk and, as stated in the brief of appellant, the “defendant admitted control and duty to maintain both the meter box and the street.” The evidence of express and implied notice to the defendant of the condition of the box was plenary, as one witness testified that the box had been in the same condition as when the plaintiff was injured six or eight months, and an employee of defendant read the meter monthly, the last time being five days before the injury. There was also evidence that the box was so placed that it made the sidewalk unsafe and dangerous. One witness testified as follows: “Now, tell the jury, if you please, the condition of that hole with reference to the surface of the sidewalk ? It was somewhat lower, three or four inches lower. I should say, and was hardly discernible. I walked over it and didn’t see it until it was pointed out to me. Why.was it that you couldn’t see it? On account of grass that had grown up about the sides of it, and probably there were leaves over it.” There was other evidence tending to prove that the box was two or three inches lower than the general surface of the sidewalk, that grass had grown around it, that dirt and leaves covered it, or nearly so, and that the covering of the box was insecurely fastened, which’ was sufficient to support the verdict. No error.