Hamilton v. City of Rocky Mount

• Decision Date: 01 October 1930
• Docket Number: 53.
• Parties: HAMILTON v. CITY OF ROCKY MOUNT.
• Court: North Carolina Supreme Court

154 S.E. 844

199 N.C. 504

HAMILTON v. CITY OF ROCKY MOUNT.

No. 53.

Supreme Court of North Carolina

October 1, 1930

Appeal from Superior Court, Nash County; Sinclair, Judge.

Action by Annie P. Hamilton against the City of Rocky Mount. From an order overruling demurrer to amended complaint, defendant appeals.

Affirmed.

Motion to dismiss action because question raised by demurrer to amend complaint had been determined on demurrer to first complaint held in effect "demurrer ore tenus," and properly denied, not being related to formal demurrer.

Demurrer ore tenus is permissible for stating other causes which could have been included in formal demurrer.

This is an action for damages for personal injury alleged to have been caused by the defendant, a municipal corporation created under the laws of North Carolina.

The amended complaint contained the following allegations:

3. That on and prior to the 13th day of November, 1928, the defendant in its private and corporate capacity owned and operated a large steam plant, for the generation and distribution of electric current to the citizens of the city of Rocky Mount and also to other persons, corporations, and municipalities outside of the city, for profit; that for the distribution of said electric current, as aforesaid, the defendant owned and maintained a system of wires, poles, cables, transformers etc., throughout the city of Rocky Mount, and elsewhere; that a part of the electric current which was transmitted over said distribution system was sold to the inhabitants of the city for profit, and a part thereof was used for the lighting of streets and sidewalks.

4. That the defendant also maintains a number of public streets and sidewalks within its corporate limits, among which are Western avenue, which runs east and west, and Church street which runs north and south, said two streets intersecting each other one block west of Main street.

5. That on November 13, 1928, the defendant, through its employees was engaged in the construction of a street lighting system along the eastern side of Church street, and in the progress of such construction was causing to be laid along the sidewalk on the east side of Church street, in said city, a cable, the purpose of which was to supply electric current for the illumination of a great number of high-powered lamps situate upon the top of iron or steel posts, which were to be erected along the eastern side of said Church street; that said system of lamps when completed would constitute what is commonly called "a white way," would illuminate the street, sidewalk, and premises of abutting property owners, and would become an integral part of the city's distributing system; that said cable was being laid in a trench or ditch, which had been cut and drilled along the eastern side of Church street on or near to the sidewalk, which extended along the eastern side of said street; that this trench or ditch intersected and crossed the sidewalks adjacent to Western avenue, said trench or ditch being several inches in depth and several inches in width.

6. That at one end the said cable, which was approximately one and one-half inches in diameter, was mounted on an enormous stationary spool and drum, from which it was pulled or stretched along said sidewalk by means of a tractor or other motor vehicle, attached to the other end; that while the cable was inert it was lying in the bottom of the aforesaid trench or ditch, but, when it was tightened or made taut by a pull from the tractor or other motor vehicle, it would suddenly rise out of the trench or ditch several feet, so as to obstruct Western avenue and the sidewalks adjacent thereto; that during the laying of said cable the same was frequently jerked and caused to rise out of the bottom of said trench or ditch, the process being a continuous one in its nature, and, at the time hereinafter complained of, had been going on and existing for several hours, or perhaps, even longer, the exact time being unknown to this plaintiff.

7. That the existence of said trench or ditch intersecting Western avenue and the sidewalks adjacent thereto, as above described, and the laying of the cable across said street and sidewalks, as aforesaid, created and constituted an obstruction and dangerous condition upon said street and sidewalks, of which said obstruction and dangerous condition the defendant had actual knowledge, or, if it did not have actual knowledge of such obstruction and dangerous condition, in the exercise of reasonable care and diligence, could have, and should have, had such knowledge.

8. That on the afternoon of November 13, 1928, plaintiff, in company with her daughter, started from her home along Western avenue, which intersects Church street, as above described, and as she approached said intersection she noticed that there was some work going on in that vicinity, but she also noticed that other travelers and pedestrians were crossing the intersection and going along said street and sidewalk; that there was no sign posted in the vicinity of said ditch and cable warning the public of any existent danger, nor were any signals or warnings given to the plaintiff that there was any obstruction or danger; that plaintiff and her daughter, in full view of the employees who were engaged in the laying of said cable, as aforesaid, started across the intersection of said streets as they saw other pedestrians doing; and plaintiff's daughter stepped over said ditch, at the bottom of which the said cable was lying, and was proceeding along the sidewalk adjacent to Western avenue toward Main street, but when the plaintiff, who was just behind her daughter, was attempting to get over said ditch, said cable suddenly, and with great and terrific force, came up, as it had been continuously doing throughout the period of the laying of said cable, as aforesaid, from the said ditch or trench in which it was lying, thereby obstructing her passage, and entangling her in such a manner as to throw her violently to the pavement, inflicting upon her serious, painful, and permanent injuries, as hereinafter more particularly set forth.

9. That at the time when plaintiff attempted to cross the intersection of said streets, and to step over said open and unguarded ditch and cable, as aforesaid, and at the time when she received her injuries, she knew nothing of the manner in which said cable was being laid, and she was entirely ignorant of the dangerous condition and obstruction existent at the place where her injuries were inflicted.

10. That it was the duty of the defendant to exercise due care to maintain its streets and sidewalks in a reasonably safe condition, and in allowing the existence of the obstruction and dangerous condition upon its streets and sidewalks, as above described, the defendant breached its duty in this respect which it owed to the plaintiff, and this breach of duty, together with its negligence and failure to warn the...