Welling v. City of Charlotte , 241 N.C. 312 ( 1955 )

85 S.E.2d 379 (1955) 241 N.C. 312

Mrs. Lillian M. WELLING
v.
CITY OF CHARLOTTE.

No. 530.

Supreme Court of North Carolina.

January 14, 1955.

John D. Shaw, Charlotte, for defendant-appellant.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for plaintiff-appellee.

WINBORNE, Justice.

Did the trial court err in overruling defendant's motions for judgment as of nonsuit aptly made? After careful review, and consideration of the evidence offered by plaintiff and so much of defendant's evidence as is favorable to plaintiff, or tends to explain and make clear that which was offered by the plaintiff, all as shown in the case on appeal, and in the light most favorable to plaintiff, Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, this Court is constrained to hold that demurrer to the evidence, or motion for judgment as of nonsuit, renewed at the close of all the evidence, G.S. § 1-183, should have been sustained "if not upon the principal question of liability, then upon the ground of contributory negligence." See Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571, 572; Burns v. City of Charlotte, 210 N.C. 48, 185 S.E. 443; Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799, and Walker v. Town of Wilson, 222 N.C. 66, 21 S.E.2d 817.

A city or town is not an insurer of the safety of its streets. Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309; Oliver v. City of Raleigh, 212 N.C. 465, 193 S.E. 853; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146; Houston v. City of Monroe, supra; Watkins v. City of Raleigh, supra; Gettys v. Town of Marion, supra; Walker v. Town of Wilson, supra, and numerous other cases.

The liability of a city or town for injuries from defects or obstructions in its streets is for negligence which is the proximate cause of the injury. As stated in Walker v. Town of Wilson, supra [222 N. C. 66, 21 S.E.2d 818], opinion by Denny, J., "`The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence and for negligence only; it is not an insurer of the safety of travelers, and is not liable for consequences arising from unusual or extraordinary circumstances which could not have been foreseen, but is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition for travel by those using them in a proper manner.'" 43 C.J. Municipal Corporations, Sec. 1785, p. 998; 63 C.J.S., Municipal Corporations, § 802.

Indeed, as stated by this Court, opinion by Hoke, J., in Fitzgerald v. City of Concord, supra [140 N.C. 110, 52 S.E. 310]: "The town, however, is not held to warrant that the condition of its streets * * * shall be at all times absolutely safe. It 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 town `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.'" This principle is applied in Gettys v. Town of Marion, supra [218 N.C. 266, 10 S.E.2d 801], in opinion by Barnhill, J., now C. J., in this manner: "The happening of an injury does not raise the presumption of negligence. There must be evidence of notice either actual or constructive. * * * The existence of a condition which causes injury is not negligence per se. * * *"

On the other hand, a person traveling on a street is required in the exercise of due care to use his faculties to discover and avoid defects and obstructions, the care being commensurate with the danger or appearance thereof. Russell v. Town of Monroe, 116 N.C. 720, 21 S.E. 550; Rollins v. City of Winston Salem, 176 N.C. 411, 97 S.E. 211; Ferguson v. City of Asheville, supra; Watkins v. City of Raleigh, supra. He is guilty of contributory negligence if by reason of his failure to exercise such care he fails to discover and avoid a defect which is visible and obvious. Pinnix v. City of Durham, 130 N.C. 360, 41 S.E. 932; Watkins v. City of Raleigh, supra.

Moreover, in this action, as in all civil actions for the recovery of damages for injuries allegedly resulting from actionable negligence, "the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury—a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed." Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, 85. See also Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326, and cases cited.

And the principle prevails in this State that what is negligence is a question of law, and, when the facts are admitted or established, the Court must say whether it does or does not exist. "This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause." Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705; Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1, 4; Murray v. Atlantic Coast Line R. Co., supra.

In Lineberry v. North Carolina R. Co., supra, this Court in opinion by Clarkson, J., said: "It is well settled that, where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury".

In the light of these principles, the following is an outline of the evidence offered on the trial of this case. On Sunday, 24 February, 1952, plaintiff, in going from First Baptist Church to the Square, stepped into a hole located in the sidewalk on east side of North Tryon Street between Sixth and Seventh Streets in close proximity to the corner of a building. But there is no direct evidence as to how long this hole had been there. For ten years, plaintiff, in attending the First Baptist Church, had walked from the Square on the sidewalk in question, and had not noticed the hole. For two and a half years, plaintiff's witness, the student nurse, who came to assistance of plaintiff at time she fell, had customarily attended services at the First Baptist Church and usually walked from the Square to the Church on the sidewalk in question, and had never noticed the hole she talked about seeing there on Sunday, 24 February, 1952, after plaintiff fell. She had "walked up the sidewalk just like people do", and she "thought the sidewalk could have been better, but it was all right". When, then, was the hole made? The only evidence as to this came from the expert engineer, Mr. Halfhill, who gave it as his opinion, from appearances, "the hole had been there perhaps two or three years", and that "it would take probably more than a year, considering normal foot traffic, for the edges of the concrete to become weathered". He testified that he examined the place on 27 February, 1952, and "he could easily see the hole".

"Sunday, February 24, 1952, after church let out, it was a nice, bright, sunshiny day."

Thus it was the duty of plaintiff, in the exercise of due care, to use her faculties to discover and avoid defects and obstructions, the care being commensurate with the danger or appearance thereof. But the sidewalk was crowded with people, who had just come out of the church. Some were standing on either side of her, and in front and back, when she walked up the sidewalk toward the Square. She testified: "I could not watch the sidewalk, the people were very close together * * *. If I had looked down, I could not have seen where my foot was going, the people were too close. I was not looking down, they were too close up to one another * * *. I was not crippled and never was one to feel along. I walked as I pleased, and I thought the sidewalk was reasonably fit for people to use for sidewalk purposes."

Thus it appears that plaintiff had put herself in a position in which she could not, and did not attempt to use her faculties to discover and avoid defects and obstructions, as it was her duty to do in the exercise of due care.

Under all the circumstances, however unfortunate and regrettable the occurrence may be, the city is not liable therefor.

Hence the judgment below is

Reversed.