Revis v. City of Raleigh

Connor, J., after stating the case: "We concur with his Honor that there was nQ evidence of contributory negligence. The answer alleged that plaintiff contributed to his injury by his negligence and carried the burden of sustaining the allegation. It having failed to show either by introducing testimony or eliciting anything from plaintiff’s evidence to make good its averment, the issue was properly withdrawn. It is elementary that the court should not submit an issue where there is no evidence to sustain a'finding for the parly who carries the burden of proving it. The ruling of his Honor gives to the defendant the benefit, upon review, of having all of the testimony, with all inferences, most favorable to it, taken as true, or as if plaintiff *353 bad demurred to tbe evidence in tbis respect. Considered in tbis way, we find no evidence of tbe truth of defendant’s averment. While much was said in tbe instruction to tbe jury>and in tbe argument in tbis Court in regard to tbe alleged negligence of defendant in permitting tbe bole for tbe telephone pole to be dug on or near tbe sidewalk, tbe decision turns upon tbe question whether there was actionable negligence in failing to provide and maintain a safe and secure covering for1 it. Tbe general instruction of bis Honor in regard to tbe duty of tbe defendant to keep tbe streets and sidewalks in a safe condition for persons traveling on them is in strict accordance with and very largely in tbe language of tbe opinion of Mr. Justice Hohe, in Fitzgerald v. Concord, 140 N. C., 110, which is fully sustained both by reason and authority. Tbe plaintiff contends that in either of two aspects of tbe evidence be is entitled to recover: (1) That defendant’s officers bad actual notice of tbe bole in tbe street, and of the unsafe and insecure condition of tbe covering over it, long before tbe plaintiff sustained tbe injury; that „the opportunity to repair was ample and tbe duty imperative. (2) That if it hás failed to convince tbe jury that defendant bad actual notice of tbe conditions — they bad existed for so long a time prior to tbe time of bis injury that it was its duty to have known them by inspection and examination of tbe streets — that by construction of law it was fixed with notice, imposing tbe duty of repair. In considering tbe first view, if, as testified by tbe witness Lane and tbe witnesses corroborating -him, tbe defendant’s officers were notified — had their attention called to tbe unsafe and dangerous condition of tbe covering over tbe bole — and it was’ their manifest duty to promptly remove it, either by filling up tbe bole or placing a sound and safe covering over it,- one at least sufficiently strong to have borne tbe weight of a man — -in tbis view of tbe case tbe liability of tbe defendant is clear. “Upon notice of defects and dangers in tbe streets, tbe city must remove them within a reasonable time, and failure to do so is negligence.” Jones v. Greensboro, 124 N. C., 310; 15 Am. and Eng. Enc., 477. *354 We are unable to perceive any valid excuse for the failure to repair the covering or fill up the bole, if defendant bad notice, as testified by Lane. If, however, the city bad no actual notice of the dangerous condition existing, the plaintiff must sbow tbat by the exercise of tbat degree of care and the performance of the duty of inspection of the street it would bave known it. Tbe city is not permitted to neglect the duty of reasonably frequent inspection of its streets, and wben, by reason of defects and pitfalls or defective coverings of culverts, boles, etc., some one is injured, avoid liability by pleading ignorance of the conditions producing the injury. In tbis view of the ease the question is to be submitted to the jury and in the light of all the evidence they shall say whether a reasonable time has elajjsed between the origin of the dangerous condition and the injury to bave enabled the city authorities to bave discovered and removed or remedied it. No arbitrary rule of law in tbis respect can be laid down by the court. “There is and can be no fixed time from which' notice may be inferred. A reasonable time in one instance may not be in another.” Smith Mun. Corp., see. 1302. “On the question of notice, implied from the continued existence of the 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,” etc. Fitzgerald v. Concord, supra,; 15 Am. and Eng. Enc., 483 ; 1 Sherman and Red. on Neg., 643. His Honor drew tbis distinction in saying to the jury, “If the defendant permitted an opening in the sidewalk, insufficiently covered and protected on one of its principal streets, upon which there is much travel, no matter bow long the same has been in an unsafe condition, or for such length of time as the city should have known of its existence, or if for any length of time, with the actual knowledge of the authorities,” etc. While tbis language is not so clear as might be desired, it is evident from tbat which immediately followed tbat the jury could not bave been misled. He said: “Tbe burden is upon the plaintiff to satisfy the minds of the jury by the greater weight of the evidence tbat the proper officers of the city knew or by ordinary diligence might bave discovered *355 the defect or dangerous obstruction, and also that the character of the same was such that injuries to persons using the sidewalk, in the exercise of ordinary care and watchfulness, might have been anticipated.” This language is absolutely free from objection. He again said that the burden was upon the plaintiff to show the dangerous conditions, and that they had existed long enough before the accident for the authorities to have known it, so as to impose upon them the obligation to put it in a proper condition. To this point in the instruction no exception can be sustained. His Honor, in conclusion, and by way of illustration, said: “If they permitted that hole to stay there as long as one week without an inspection, and a man went along there — and this plaintiff went along there — and fell in, the court charges you that would be negligence, for which the city of Raleigh would be liable.” We do not concur with this language. The court cannot, certainly in a case like this, say as a matter of law that the failure to inspect this street for a week was negligence. The period of time within which inspection of a street must be made is dependent upon the facts in each case, and should be left to the jury; it must be reasonably frequent, but' •what is so depends upon a number of conditions, varying in different cases. There was no evidence that only a week had elapsed since the hole was dug or the plank had become insecure; all of the evidence indicated a much longer time. Certainly the fact that a hole had been dug in the-sidewalk, or near to it, four or five months before the accident, and that it was covered by a piece of goods box — “soft plank” — long enough for “the grass to grow around it,” excludes the suggestion that only a week had elapsed between its placing and the injury to plaintiff. In view of the entire charge, we cannot think that the jury could have been misled by the language to which exception is taken. It is the well-settled rule of all appellate courts to read and construe the entire charge of the court and deal with it as a whole. It is not permissible to make disconnected excerpts and seek to find reversible error. To do so would frequently result in new trials where it was manifest that no prejudicial error was committed or the jury misled. The plaintiff’s counsel *356 insisted that upon tbe whole evidence he was entitled to recover. It is not clear but that an instruction, properly framed, based upon this review, would have been correct. We have considered the other exceptions made by defendant, and find no error in his Honor’s ruling in respect to them. Upon an examination of the entire record we find no reversible error. It must be so certified. No Error.