Alexander v. City of Statesville
| Citation | 81 S.E. 763,165 N.C. 527 |
| Decision Date | 13 May 1914 |
| Docket Number | 518. |
| Parties | ALEXANDER v. CITY OF STATESVILLE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Iredell County; Long, Judge.
Action by Harold Alexander, by next friend, against the City of Statesville. From a judgment on a verdict for defendant plaintiff appeals. Affirmed.
In an action for injuries plaintiff must prove actionable negligence before defendant is called upon to show contributory negligence.
Action to recover damages for personal injuries, alleged to have been caused by defendant's negligence. Plaintiff is a boy about seven years old, and was, at the time he was hurt, a pupil at the graded school in Statesville. Defendant was engaged in widening Bell street some 15 feet and constructing a culvert underneath it. Plaintiff contended that the work of widening the street had been completed and the street open for travel, the space between the head walls of the culvert having been filled with dirt to the intended street level and the sidewalks completed. That there were no barriers or guard rails on the head walls, which capped ends of the culvert and from which there extended downwards to the lower land, about 15 feet, a sheer precipice. Plaintiff was going home with his playmates from the school and stopped at the culvert. He was standing on or near the edge of the culvert or head wall to the south, and either fell off or was pushed over it by a companion, and dropped to the ground below and was injured. Defendant contended that the street work had not been finished; that there was no sidewalk on the south side of the street, but there was a concrete walk, which had been completed and was the one used by the public, including school children, on the north side, extending from Center to Mulberry streets, and that there never had been any walk on the south side. It also alleged that the head wall on the south side was from 18 inches to 2 feet above the level of the dirt roadway, and was itself a barrier or guard. There was evidence to support these contentions. Plaintiff requested the court to instruct the jury that, "if they believed the evidence, they should answer the first issue as to negligence, 'Yes,' " This was refused, and plaintiff excepted. The court charged the jury, in part, as follows:
"(1) If the city, in opening or repairing one of its streets or sidewalks for travel, has opened a part of said street for travel and is at work on the remainder--if you so find--then it must use reasonable care to guard passers-by along said street or sidewalk from injury by conditions existing on that part of said street or sidewalk not open for travel, by placing sufficient barriers to protect persons from injury in going over such street, provided the city has manifested its purpose to open such way and dedicate the same to the use of the public; and, if it fails to use reasonable care in this respect, that is, the care of a prudent man under all of the circumstances, and a pedestrian is injured whilst traveling along such street and such injury was proximately caused by the negligence of the city, the city would be liable for such damages as might ensue.
(2) It was the duty of the defendant to keep its streets, including its sidewalks, in proper repair, that is, in such condition as that children and others in passing and repassing over them might at all times, when said streets have been opened for travel, do so with reasonable safety, and proper repair means that all bridges or culverts, dangerous pits, embankments, and like perilous places, very near and adjoining the streets, shall be guarded against by proper railings or barriers.
(3) If you find by the greater weight of the evidence that the defendant employed Mr. Lazenby to construct the culvert along Bell street, and that it caused Mr. Allison and others to raise Bell street, at and near the said culvert, above the level of the surrounding ground, to a height of 10 feet or more at the culvert, and you find that said street was opened by the city for travel, and you find that it failed to place guard rails or barriers along the said sidewalk, but left said street or sidewalk at said point unprotected, and you find that such failure on the part of the city was the proximate cause of the injury to the plaintiff, then the defendant would be guilty of negligence, and under such findings, if so made by you from the evidence, you would answer the first issue, 'Yes.' "
Issues as to negligence, contributory negligence, and damages were submitted. The jury having answered the first issue, as to negligence, "No," did not answer the other issues. Judgment upon the verdict and appeal by plaintiff.
Lewis & Lewis and H. P. Grier, all of Statesville, for appellant.
Dorman Thompson and L. C. Caldwell, both of Statesville, for appellee.
WALKER, J. (after stating the facts as above).
The plaintiff's counsel requested the court to charge the jury that the first issue should be answered affirmatively if they believed the evidence. This, if given, would, of course, be virtually a withdrawal of the fact involved in the main issue, as to negligence, from the finding of the jury, leaving them only to decide upon the credibility of the evidence. The form of the prayer, as we have frequently said, is not to be commended, as the jury may believe the evidence, and yet not be willing to find that the fact of negligence has been established by it. Sossamon v. Cruse, 133 N.C. 470, 45 S.E. 757; Merrell v. Dudley, 139 N.C. 57, 51 S.E. 777; State v. Blackwell, 162 N.C. 672, 78 S.E. 316. But, waiving this defect for the present, we do not think the prayer was in other respects a proper one. The question of negligence was not one merely of law, to be declared by the court, as the evidence was conflicting, and therefore the jury should have passed upon it and found the facts. Russell v. Railroad, 118 N.C. 1112, 24 S.E. 512; Hardison v. Railroad, 120 N.C. 492, 26 S.E. 630; Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39; Everett v. Receivers, 121 N.C. 521, 27 S.E. 991. The evidence was of such a kind that, upon the question of negligence, more than one inference may be drawn from it, and two fair-minded persons of equal intelligence may have differed in regard to it and formed different conclusions. Graves v. Railroad Co., 136 N.C. 3, 48 S.E. 502; Ramsbottom v. Railroad Co., 138 N.C. 38, 50 S.E. 448. "When the facts are controverted or the negligence is not so clearly shown that the court can pronounce upon it, as matter of law, the case should go to the jury with proper instructions, so that they may apply the law to any given state of facts as found by them." Graves v. Railroad Co., supra. In order to give an affirmative answer to the first issue, the jury would be required to find two facts: First, that there was negligence; and, second, that this negligence was the proximate cause of the injury. Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885. Passive negligence is harmless, and it is only when it is active, and the direct or efficient cause of the injury, that it becomes actionable. Plaintiff was required, therefore, to show, the clear burden being upon him to do so, that the negligence, if any, proximately caused the damage. It is a breach of duty owing by defendant to the plaintiff, from which damage, not remotely but directly, ensues, that gives him a cause of action.
We held in Byrd v. Express Co., 139 N.C. 275, 51 S.E. 851, that negligence of a defendant, followed by an injury, does make him liable therefor, "unless the connection of cause and effect is established, and the negligent act of the defendant must not only be the cause, but the proximate cause, of the injury." Equally emphatic is the language of the court in Hauser v. Telegraph Co., 150 N.C. 557, 64 S.E. 503; Hoaglin v. Telegraph Co., 161 N.C. 398, 77 S.E. 417; Hocutt v. Telegraph Co., 147 N.C. 186, 60 S.E. 980. Plaintiff must first prove actionable negligence before the defendant is called upon to show negligence on the part of the plaintiff which contributed to the injury. What was the duty of the defendant to the plaintiff in this case? A city does not insure or warrant the safe condition of its streets. It must keep and maintain them in a reasonably safe condition, and exercise ordinary care and due diligence to see if they are so kept and maintained. Smith v. Winston, 162 N.C. 50, 77 S.E. 1093, and cases cited therein.
After stating that the authorities of a city, town, or village are charged with the duty of keeping its streets in a "reasonably safe condition" only and to the extent that this can be done by the exercise of due care and supervision, Justice Hoke says, in Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309: The record shows that the judge who presided at the trial of this cause charged the jury in exact accordance with the principle thus so clearly stated in that case, and which has since been approved so often. White v. New Bern, 146 N.C. 447, 59 S.E. 992, 13 L. R. A. (N. S.) 1166, 125 Am. St. Rep. 476; Revis v. Raleigh, 150 N.C. 353, 63 S.E. 1049; Johnson v. Raleigh, 156 N.C. 269, 72 S.E. 368.
The city undoubtedly had the right, and it was its duty, if required by the public convenience, to widen, regrade,...
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