Mills v. . Charlotte , 218 N.C. 564 ( 1940 )

The complaint alleges in effect that the defendant negligently excavated a large hole across and under the sidewalk in the eleven hundred block on the east side of North Tryon Street in the city of Charlotte and negligently threw and left the dirt from the hole in such a manner as to block the sidewalk, the space between the sidewalk and the curb of the street, and about one-third of the vehicular traveled portion of the street, in such a manner as to require a pedestrian going south on said sidewalk to walk out into the portion of the street used for vehicular traffic; and that the plaintiff was walking southward on the east sidewalk of North Tryon Street, and upon reaching the obstruction caused by the excavation and dirt attempted to go around it by walking out into the vehicular traveled portion of the street, and when out in such portion of said street she was run down and injured by an automobile which was also going southward and passing another automobile in said street; and that said negligence of the defendant was the proximate cause of her injury. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action against the city for the reason it appeared therefrom that the alleged negligence of the defendant was not the proximate cause of the alleged injury of the plaintiff. The court sustained the demurrer and signed judgment accordingly, from which plaintiff appealed, assigning as error the action of the court.

We are of the opinion, and so hold, that the ruling and judgment of his Honor, upon the authority of Newell v. Darnell, 209 N.C. 254, were correct.

Affirmed.