Absher v. City of Raleigh

• Decision Date: 28 April 1937
• Docket Number: 451.
• Citation: 190 S.E. 897,211 N.C. 567
• Parties: ABSHER v. CITY OF RALEIGH.
• Court: North Carolina Supreme Court

190 S.E. 897

211 N.C. 567

ABSHER v. CITY OF RALEIGH.

No. 451.

Supreme Court of North Carolina

April 28, 1937

Appeal from Superior Court, Wake County; Walter L. Small, Judge.

Action by Kate F. Absher against the City of Raleigh. From a judgment for plaintiff, defendant appeals.

New trial granted.

Civil action to recover damages for personal injuries sustained by plaintiff when she fell on one of the public streets of the city of Raleigh, due to the defective condition of the sidewalk.

The record discloses that on the night of October 22, 1935, the plaintiff was walking along the cement sidewalk on the west side of Glenwood avenue, city of Raleigh, when "one of her feet suddenly caught under a section of the concrete sidewalk that was several inches higher than the other section thereof," by reason of which the plaintiff was thrown to the ground and severely injured, her right arm being broken or fractured.

The defendant denied all allegations of negligence, pleaded contributory negligence, alleging that plaintiff failed to exercise reasonable care for her own safety, and elicited from plaintiff's witnesses the following on cross-examination: (1) C. H. Rogers, "You can see the broken place while riding in an automobile along Glenwood avenue if a person looked for it." (2) Elizabeth Coppedge, "We skated over it. * * * It was easy to step over if you were sure of your footing." (3) Mrs. Hunter "I was always careful when I passed it. I didn't stop to look at it."

There was evidence on behalf of the plaintiff tending to show that she could not see the defective condition of the sidewalk in the dark.

The court declined to submit an issue of contributory negligence. Exception by defendant.

The defendant, also, assigns error in that plaintiff's physician was allowed to demonstrate certain testimony upon the person of the plaintiff by manipulating her arm and elbow in the presence of the jury, causing demonstrations of pain and suffering by the plaintiff, and permitting the witness to comment on said demonstrations.

The jury answered the issue of negligence in favor of the plaintiff, and assessed her damages at $7,500. From judgment on the verdict, the defendant appeals, assigning errors.

Plaintiff's "contributory negligence" to bar a recovery need not be the sole or exclusive proximate cause of the injury and plaintiff may not recover when his negligence concurs with that of defendant in proximately producing the injury.

Clem B. Holding, of Raleigh, for appellant.

Douglass & Douglass, of Raleigh, for appellee.

STACY Chief Justice.

The evidence on the issue of contributory negligence is not all one way. It is sufficiently equivocal and contradictory to require its submission to the jury. Doyle v Charlotte, 210 N.C. 709, 188 S.E. 322; Williams v Safe Bus Co., 210 N.C. 400, 186 S.E. 482; Oldham v Seaboard Air Line Ry. Co., 210 N.C. 642, 188 S.E. 106. Compare Gasque v. Asheville, 207 N.C. 821, 178 S.E. 848. "A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence, and take away the question of negligence and contributory negligence from the jury. The right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for the jury and not the court." Clarkson, J., in Moseley v. Atlantic Coast Line R. R. Co....