McKay v. City of Charlotte

MARTIN, Judge. Defendant assigns as error the trial court’s denial of its motions for a directed verdict and for judgment notwithstanding the verdict. Its sole contention with respect thereto is that plaintiff’s evidence establishes his contributory negligence as a matter of law. We cannot agree. In support of this contention, defendant cites and relies upon a series of “trip and fall” cases involving defects and obstructions on city sidewalks where the courts found the respective [564] plaintiffs contributorily negligent as a matter of law. See Hedrick v. Akers, 244 N.C. 274, 93 S.E. 2d 160 (1956); Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424 (1939); Burns v. Charlotte, 210 N.C. 48, 185 S.E. 443 (1936); McClellan v. Concord, 16 N.C. App. 136, 191 S.E. 2d 430 (1972). These cases stand generally for the proposition that a person is under a duty to discover and avoid defects and obstructions which are visible, obvious and discoverable in the exercise of due care. The underlying rationale of these decisions is that “obvious” defects such as cracks and holes in the pavement and “useful” obstructions such as fire hydrants and utility poles are common and normal obstacles which a person using the sidewalk is required to anticipate and look out for. Hedrick v. Akers, supra, and McClellan v. Concord, supra. In the instant case, however, the flag bracket over which plaintiff tripped was not an obvious defect or common obstruction whose presence on the sidewalk should have been anticipated. Moreover, from the evidence presented, we cannot find as a matter of law that in the exercise of due care plaintiff should have seen the flag bracket. It is well established that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes his negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Clark v. Bodycombe, 289 N.C. 246, 221 S.E. 2d 506 (1976). The testimony adduced at trial was unclear as to whether the flag bracket was between the light pole and the curb, or was placed against the light pole opposite the side from which plaintiff approached. Thus, taken in the light most favorable to plaintiff, the evidence supports the inference that the flag bracket was behind the light pole and hence, almost completely obstructed from plaintiff’s view except for the cross-member over which plaintiff tripped. On this evidence, we cannot say that reasonable minds could conclude only that plaintiff should have seen the flag bracket. Therefore, the evidence does not establish contributory negligence as a matter of law and the case was properly submitted to the jury. [565] The trial court’s denial of defendant City of Charlotte’s motion for a directed verdict and for judgment notwithstanding the verdict is affirmed. Affirmed. Judges Parker and Arnold concur.