Jackson v. . Commissioners of Greene , 76 N.C. 282 ( 1877 )

^* Faircloth, J., being of counsel in the Court below did not sit at the hearing of this case. His Honor in singling out the testimony of the witness Rawls when there were several others testifying to the same matters, and charging the jury that if they believed his evidence, then there was no negligence on the part of the defendant, put himself in conflict with Anderson v. C. F.Steamboat Co. 64 N.C. 399, and Willey v. Gatling, 70 N.C. 410. And if the case turned upon that, then it may be that we would have to grant a new trial.

And so we think His Honor was in error in charging the jury that if the bridge was down four or five weeks, then there was negligence on the part of the defendants. For no matter how long it was down after the injury to the plaintiff, she would have no right to complain. The question which she had the right to make is, how long was the bridge down from the time when it was taken down until she was injured? Had there been time enough to complete the repairs? And upon that point the only evidence was that it was taken down on the 8th, and the complaint states that she was injured on the 21st of the same month, thirteen days. But this error was against the defendants and they do not appeal.

But these errors were cured by what His Honor correctly charged that even if the defendants were guilty of negligence in not repairing the bridge within reasonable time, still the plaintiff could not recover because the plaintiff was guilty of contributory negligence.

It is not stated whether there was a ford at the bridge. If there was and the plaintiff had ventured to cross there when it was apparent that the stream was swollen and dangerous to cross and injury had resulted, the defendants would not have been liable; because they were not obliged to keep a servant there to warn off from a danger which was palpable. It has not been usual nor is it necessary for those who have the care of public roads to keep servants at crossings to give notice when the streams are "up." And secondly because it would have been contributory negligence on the part of the plaintiff to venture to cross a stream so swollen.

If it would have been negligence in the plaintiff to have attempted to cross the ford at the bridge, how much more negligent it was to leave the public road and to take an unusual path and attempt to cross at an unused ford, and then instead of going across and out at the only place used for crossing and going out, to "turn down the stream for fifty yards" to try to go out where there was an "opening in the trees."

As no great harm came to the good plaintiff we may be excused for the pleasantry of saying that the venture rivals the famous "wade through the big swamp when it was up."

No error.

PER CURIAM. Judgment affirmed.