Walker v. Town of Wilson

Denny, J. The exceptions and assignments of error may be disposed of by a consideration of defendant’s motion for judgment as of nonsuit. *68 Considering tbe evidence in the light most favorable to the plaintiff, we are of the opinion that the plaintiff has failed to establish liability for her injury on the part of the defendant. The burden was on the plaintiff to show that the town of Wilson was negligent, and that its negligence was the proximate cause of her injury. This she has failed to do. Love v. Asheville, 210 N. C., 476, 187 S. E., 562. “The liability of a municipal corporation for injuries from defects or obstructions in its Streets is for negligence and for negligence only; it is not an insurer of the safety of travelers, and is not liable for consequences arising from unusual or extraordinary circumstances which could not have been foreseen, but is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition for travel by those using them in a proper manner.” 43 C. J., Municipal Corporations, sec. 1785, p. 998. The plaintiff’s testimony certainly does not lead to the conclusion that the town of Wilson was negligent in that it had failed to provide a safe way for her; oh the contrary, she says: “The sidewalk is perfectly level and smooth and at that point is straight. ... I was not meeting anybody. I had the whole sidewalk to myself. I could . . . see down the street to the next intersection. Nothing in front of me to obstruct my vision. The street light on the corner was burning and the street light back of me was burning. I suppose the street light in front of Mr. Finch’s house was burning.” The evidence discloses no reason why the plaintiff could not, in the exercise of due care for her own safety, have observed the actual conditions which existed in the unpaved area between the sidewalk and the retaining wall. Moreover, she was accustomed to walking on that particular sidewalk. We think the rule laid down in Burns v. Charlotte, 210 N. C., 48, 185 S. E., 443, is applicable to the facts in the instant case, in which the Court said: “If one way is safe and the other dangerous, and a person knew, or by the exercise of due care ought to have known, of the dangerous way, and goes that way, the person is guilty of contributory negligence and cannot recover. Groome v. Statesville, 207 N. C., 538, 177 S. E., 638.” Houston v. Monroe, 213 N. C., 788, 197 S. E., 571; Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424; Gettys v. Marion, 218 N. C., 268, 10 S. E. (2d), 799. The plaintiff relies upon Bunch v. Edenton, 90 N. C., 431; Wall v. Asheville, 219 N. C., 163, 13 S. E. (2d), 260; and Radford v. Asheville, 219 N. C., 185, 13 S. E. (2d), 256. The facts in the above cases are distinguishable from those in the instant case. Defendant’s motion for judgment as of nonsuit should have been granted. The judgment of the court below is Reversed.