Debnam v. Town of Whiteville

Claeksoh, J. At the close of plaintiff’s evidence and at the close of all the evidence the defendant in the court below made motions for judg [621] ment as in case of nonsuit. 0. S., 567. The court below overruled these motions, and in this we can see no error. The evidence which makes for plaintiff’s claim, or tends to support her cause of action, is to be taken in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. The charge of the court below is not in the record, and the presumption is that the court below charged the law applicable to the facts. There is no issue as to contributory negligence and none set up in the answer. The only serious contention made by the defendant is that there was no sufficient evidence to be submitted to the jury that the defendant had either express or implied notice of the defects in the sidewalk. We think the evidence sufficient to be submitted to the jury: (1) That the defendant town, in grading the street, put the boards on the sidewalk, and the danger was created by the town itself. (2) That the boards had been on the sidewalk such a length of time as to give the town implied notice. In Markham v. Improvement Co., 201 N. C., 117 (120), citing numerous authorities, it is said: “The law imposes upon the governing authorities of a city or town the duty of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who may have occasion to use them in a proper manner. Such authorities are liable only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect and the occurrence of an injury; he must show that the officers of the city knew, or by ordinary diligence might have known, of the defect. But actual notice is not required. Rotice of a dangerous condition in a street may be implied, and indeed will be imputed to the city or town if its officers should have discovered it in the exercise of due care. This principle has been adhered to in our decisions and is now regarded as firmly established.” Kinsey v. Kinston, 145 N. C., 106; Bailey v. Winston, 157 N. C., 252; Gasque v. Asheville, 207 N. C., 821. Bor the reasons given, we find no error in the judgment of the court below. Ro error.