Gasque v. City of Asheville , 207 N.C. 821 ( 1935 )

OlakksoN, J.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence tbe defendant made motions for judgment as in case of nonsuit in tbe court below. C. S., 567. Tbe court below overruled these motions, and in this we can see no error.

On motion to dismiss, or judgment of nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. An exception to a motion to dismiss in a civil action taken after tbe close of tbe plaintiff’s evidence, and renewed by defendant after tbe introduction of bis own evidence does not confine tbe appeal to tbe plaintiff’s evidence alone, and a judgment will be sustained under tbe second exception if there is any evidence on tbe whole record of tbe defendant’s liability.

Tbe defendant excepted and assigned as error tbe question propounded to Viola Gasque, wife of plaintiff: “Q. What has been tbe condition of bis health since 7 April, 1933 ? A. ‘It has been bad.’ ” We do not think this exception and assignment of error can be sustained. Tbe wife, Viola Gasque, from her testimony, bad every opportunity for observation.

In Sherrill v. Telegraph Co., 117 N. C., 352 (363), we find: “Tbe mental state or appearance of a person, or bis manner, habit, conduct, or bodily condition, as far as they can be derived from mere observation as distinguished from medical examination, may be proved by tbe opinion of one who has bad opportunities to form it.”

In S. v. Brodie, 190 N. C., 554 (555), citing McKelvey on Evidence, 172, 231, and other authorities, we find: “It is a familiar principle that one who is called to testify is usually restricted to facts within bis knowledge; but if by reason of opportunities for observation be is in a position to judge of tbe acts more accurately than those who have not bad such opportunities, bis testimony will not be excluded on tbe ground that it is a mere expression of opinion.”

In Wigmore on Evidence, Vol. 1 (2d Ed.), ch. 22, sec. 568 (1), p. 974, speaking to tbe subject, we find: “While on matters strictly involving medical science, as such, some special skill is needed, yet there are numerous related matters, involving health and bodily soundness, upon which the ordinary experience of everyday life is entirely sufficient. The line may sometimes be difficult to draw; but there can be no difficulty in determining that a layman may be received to state (for example) that a person was or was not apparently ill. Great liberality should be shown by the courts in applying this principle, so that the cause of justice may not be obstructed by narrow and finical rulings.” In the note to the above there are abundant authorities cited showing that the testimony of laymen in matters of this kind is admissible.

From the other evidence in the case, the question is at least not prejudicial. The defendant tendered certain issues to be submitted to the jury. As there was no evidence of contributory negligence, no issue was tendered on that defense set up in the answer of defendant. The matter set forth in the issues tendered by defendant were considered under the first issue, and we see no error in not submitting the issues tendered by defendant. The charge of the court below on the first issue took into consideration the facts involved in the other issues tendered by defendant. The issues submitted afforded the parties an opportunity to introduce all pertinent evidence and apply it fairly.

Issues submitted are largely in trial court’s discretion, and if not prejudicial or affecting substantial rights, will ordinarily not be held error. Grier v. Weldon, 205 N. C., 575.

“The duty of the municipal corporation in reference to streets is stated as follows in Bailey v. Winston, 157 N. C., 259: ‘A city or town or village must keep its streets in good condition and repair, so that they will be safe for the use of its inhabitants or of those entitled and having occasion to use them. If they become unfit for use by reason of defects which could not be anticipated and consequently guarded against, under ordinary circumstances, the municipality should have some notice of the defect, either actual or else implied from -the circumstances; and in this connection it must be said that it is the duty of the city (and, of course, these principles apply generally to all forms of municipalities) to exercise a reasonable and continuing supervision over its streets, in order that it may know they are kept in a safe and sound condition for use. Sometimes notice of their defective condition is actual or express, again it is constructive or implied, where, for instance, the defect has existed for such a length of time as to show that the city has omitted or neglected its plain duty of supervision; and still again, it may be inferred by the jury from the facts in evidence. This principle is illustrated and was applied in Fitzgerald v. Concord, supra (140 N. C., 110), where it is said, approving 1 Sh. and Red. on Negligence, see. 369: “Unless some statute requires it, actual notice is not a necessary condition of corporate liability for the defect which caused the injury. Under its duty of active vigilance, a municipal corporation is bound to knew tbe condition of its highways, and for practical purposes the opportunity of knowing must stand for actual knowledge. Hence, when observable defects in a highway have existed for a time so long that they ought to have been seen, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words, they are presumed to have been discovered by the exercise of reasonable diligence.” . . . “On the question of notice implied from the continued existence of a defect, no definite or fixed rule can be laid down as to the time required, and it is usually a question for the jury on the facts and circumstances of each particular case, giving proper consideration to the character of the structure,- its material, the time it has been in existence and use, the nature of the defect, its placing,” and in other considerations not necessary to be stated.’ ” Bailey v. Asheville, 180 N. C., 645 (651-8); Michaux v. Rocky Mount, 193 N. C., 550; Markham v. Improvement Co., 201 N. C., 117 (120); Speas v. Greensboro, 204 N. C., 239.

The court below charged fully and accurately as to the burden of the issue by the greater weight of the evidence being on plaintiff, also negligence and proximate cause. The court below charged the jury to which no exception was taken: “The governing authorities of a city are charged with the duty of keeping their streets and sidewalks and water meter boxes in a reasonably safe condition; and their duty does not end with putting them in a safe and sound condition originally, but they are required to keep them so to the extent that this can be accomplished by proper and reasonable care and continuing supervision.

“It is the duty of the city of Asheville to keep the streets, including the sidewalks and meter boxes thereon and nearby, in proper repair; that is, in such condition as that the people passing and repassing over them might at all times do so with reasonable ease, speed, and safety.

“It is not the duty of the city, however, to warrant that the condition of its streets and sidewalks and meter boxes shall be at all times absolutely safe. The city is not an insurer of their safety; the city is only required to exercise ordinary or reasonable care to make them safe. The city is only responsible for negligent breach of duty and to establish such responsibility it is not sufficient to show that a defect existed and an injury has been caused thereby. It must be further shown that the officers of the city knew or by the exercise of due care might have known of the defect, and that the character of the defect was such that injury to travellers therefrom might be reasonably anticipated.

“It will be observed that actual notice of a dangerous condition or defective structure is not required, but notice may be implied from circumstances, and will be imputed to the city if its officers could have discovered the defect by the exercise of due care or proper diligence. Actual notice is not a necessary condition to render tbe city liable for a defect which causes an injury. Under its duty of actual diligence, a municipal corporation is bound to know the condition of its sidewalks and meter boxes, where the opportunity of such knowledge exists; the opportunity of knowing stands for actual knowledge. A city is presumed to have notice of such defects as it might have discovered by due care or reasonable diligence, but the most that is required of a city is the use of ordinary diligence by making inspections and examinations with reasonable frequency and due care to ascertain and remedy them.

“It is the duty of a city to exercise due care to keep its streets and sidewalks and meter boxes in good condition and repair, so that they will be safe for the use of its inhabitants, or those entitled and having occasion to use them. If they become unfit for use by reason of defects which could not be anticipated, and consequently guarded against, the municipality must have some notice of the defect before it can be held liable for any injury proximately caused thereby. Sometimes notice of such defects is actual or express, and, again, sometimes such notice is constructive or implied. It is the duty of a city to exercise a reasonable and continuing supervision over its streets and sidewalks in order that it may know they are kept in safe condition.”

The evidence was to the effect that the water meter was so located that dirt Avashed down and caked around the inner rim which prevented it from fitting and it would tilt up. There was evidence that those who read the meter each month saw or in the exercise of due care could have seen this situation. The water meter was an old kind and had been there many years. Israel testified unobjected to: “The one with the ring is safe. The one without the ring is absolutely unsafe.”

Smith testified: “I first stepped on the edge of the lid and it would rock the side I Avould step on. I would go down in the hole and the other end on the other side would tilt up. I lifted the lid out of the hole. I noticed that there was dirt caked around the inside rim of this meter box and the lid would not fit down in the hole.”

We think the charge fully supported by the authorities in this jurisdiction and applicable to the facts in this case. We have examined the exceptions and assignments of error to the charge and do not think they can be sustained. On the question of damage, the court below charged the jury: “It is for the jury to say, under all the circumstances established by the evidence, what is a fair and reasonable sum which the defendant should pay to the plaintiff by way of compensation for injury sustained. The age and occupation of the injured party, the nature and extent of his business, the value of his services, the amount that he was earning at the time of his injury, or whether he was employed at the time, are all matters to be considered. The award is to be made, if made at all, on tbe basis of a casb settlement now for plaintiff’s injuries, past, present, and prospective. 'Where future payments for loss of earning power are to be anticipated by the jury and capitalized into the verdict the plaintiff is entitled only to their present worth.”

The evidence as to damage supported the charge. This charge is fully approved by the authorities. Campbell v. R. R., 201 N. C., 102 (108). The defendant submitted four prayers for special instructions. We see no error in refusing the first three, the fourth, which is as follows, was given substantially in the general charge: “The city, however, is not held to warrant that the condition of its streets shall be at all times absolutely safe; it is only responsible for a negligent breach of duty, and to establish such responsibility, it is not sufficient to show that a defect existed and an injury has been caused thereby. It must be further shown that the officers of the city knew, or by ordinary diligence might have discovered, the defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.”

The first three prayers were not entirely supported by the facts in evidence. We think the charge of the court below covered the law applicable to the facts. The court below gave the contentions accurately and fairly to both litigants and set forth the law applicable to the facts in an able and careful charge. We can see no error. The other exceptions and assignments of error are immaterial and present no new or novel propositions of law.

On the entire record we can see no prejudicial or reversible error.

No error.

SciiencK, J., took no part in the consideration or decision of this case.