Shields v. Town of Durham

*407 MONTGOMERY, J.: In actions of this nature, this Court has decided in Moffitt v. Asheville, 103 N. C., 237, that cities and towns “are liable in damages only for a failure, either to so construct their prisons, or so provide them with fuel, bed-clothing, heating apparatus, attendants and pther things necessary as to- secure to the prisoners committed to them a reasonable degree of comfort, and protect them from such actual bodily suffering as would injure their health.” If the aldermen of the city built a reasonably comfortable police prison and afterwards furnished to those who had immediate charge of it everything that was essential to prevent bodily suffering on the part of prisoners from excessive cold or heat or hunger and to protect their health, the city would not be liable, even if the suffering or sickness of the plaintiff was caused by neglect of the jailer, the policemen, or the attendants to beep the fires burning all night, or to give the plaintiff the necessary bed-clothing furnished to them. In Moffits’s case, supra, Justice Ayery, who delivered the opinion of the Court, further says: “We think that where window-glass in the windows of a police prison has been broken, and the bed-clothing furnished for its inmates has been destroyed, but governing officers of the town are not shown to have had actual notice of the breaking or destruction, or to have been negligent in omitting to provide for such over-sight of the prison as would naturally be expected to give them timely information of its condition, there is not such a failure in discharging the duties of construction or superintendence, as to subject the corporation to liability.” The facts in the case before us are almost identical with those developed on the tidal in Moffit’s case. The plaintiffs in both testified to having been injured from cold blasts of air rushing through broken panes 'of window glass in the prison windows upon them in their cells, and for a want of *408 blankets and b’ed-clotlies and fires to protect tliem from the cold. The defendants in both cases introduced six or more witnesses, including the chief of jtolice, the clerk of the Board of Commissioners and others connected with the city government, who testified that the governing authorities of the town had always furnished a plenty of warm blankets and had instructed the officers in immediate charge of the prison to keep a plenty on hand, and also to keep fuel and fires sufficient to make the prisoners comfortable, and had always furnished those officers with the means and credit to do so. In the present case, it was also put in evidence for the defendant that the chief of police had window panes put in as fast as drunken men broke them out. There was no evidence put in by the plaintiff to rebut this testimony of the defendant. No evidence was introduced by the plaintiff to show notice to the defendant of the broken panes of glass or of the want of blankets, bed clothes or fire, or that the town authorities were negligent in omitting to provide for such oversight of the prison as would naturally be expected to give them timely information of its condition. It is evident' from the charge of His Honor that that part, and the only part of the complaint which made any allegation concerning the faulty construction of the guardhouse, to-wit, “ that the said guard-house was a small room exposed, having glass in its windows broken out, and that by reason of, and in consequence of the bad condition of said guard-house”, was eliminated on the trial from the case, and that the case which His Honor submitted to the jury was upon the cause of action for the defendant’s failure to furnish the plaintiff with the proper bed clothing and blankets and fires. His Honor in his instructions to the jury said : “If you shall find the prison to be as described by the plaintiff’s testimony, and this arose because the town authorities *409 bad not made proper provision for tbe prisoner’s comfort, .and the injury was caused by such failure, the jury will answer the issue yes.” If it should be thought that by these words the Court submitted the question of the alleged faulty construction of the prison to the jury, the next sentences of the charge will show that that view of the case was not in his mind: ‘Tf the jury shall find that the defendant had provided fuel and blankets sufficient to make the plaintiff comfortable, the jury will answer the issue No; or if the injury to plaintiff arose because plaintiff did not .take advantage of the provision that was made for his comfort, the jury will answer the issue No; or if plaintiff’s injury arose because the policemen charged with the duty failed to give the plaintiff the benefit and protection of the provision made by the defendant, the jury will answer the issue No.” If the matter of the construction of the guardhouse had been in his mind, he could not have given that portion of his charge, last quoted, because the town might not have been negligent in the matter of furnishing blankets, bed clothes and fires and yet have been negligent in the building and construction of a guard-house suitable for- a prison. The instructions asked the Court by the defendant numbered' 8, 9, 10 should have been given to the jury. There is error and the defendant is entitled to a new trial. New Trial.