Brown v. Durham.

Hoice, J., after stating the case: The right of the plaintiff to recover on the facts set ont in the case on appeal is fully sustained by the principles announced in Bunch v. Edenton, 90 N. C., 431, and Fitzgerald v. Concord, 140 N. C., 110, and there is no error in the record — certainly none which gives the defendant any just ground of complaint. Among other things, the judge below charged the jury that it whould be a breach of duty on the part of the city for it to permit a hole or washout one or more feet wide and eight inches or more deep, and extending two feet or more across the sidewalk, adjacent to and opening into a large hole five feet or more deep and four feet in diameter just out of the sidewalk, to remain without light and without railing or barriers to protect the same for an unreasonable length of time. And ITis Honor further charged: “If you find from the greater weight of evidence that the defendant permitted a washout one foot or more wide and eight inches or more deep, extending half way or more across the path of one of the most populous sidewalks of a much used street in the city of Durham and adjacent to a large hole, such as above described, just outside the sidewalk, to remain without being repaired and without rails or barriers and light to guard such a hole for the space of ten days, this would be an unreasonable length of time.” The second portion of the charge is especially urged for error in that the judge held ten days to be an unreasonable length of time, as a matter of law. We think the charge was clearly correct. There was evidence tending to prove the facts suggested, and, if proved, they are not only sufficient to fix the defendant with notice, but they make out such a clear case of negligence that there could be no two opinions on the question among men of fair minds, and this is the *253 test established by decisions on trials of this character, determining when negligence may be defined by the judge as a question of law. Russell v. Railroad, 118 N. C., 1098; Ramsbottom v. Railroad, 138 N. C., 38. There was evidence on the part of the defendant that the street lights provided by the town, while some distance away, at times noticed by the witnesses and generally, gave light enough to have enabled the plaintiff to note the condition of the sidewalk. The plaintiff himself testified, however, that there was nothing to protect him from the hole; that he had never noticed it before and that there was no light there; he could not see any light except when he got up to Main street on the street car line. In -this conflict of testimony, the question as to the effect of the plaintiff’s conduct was properly left to the jury under a correct charge on the issue as to contributory negligence. > There is no error and the judgment below is Affirmed.