Cole v. City of Durham

• Decision Date: 30 October 1918
• Docket Number: 323.
• Parties: COLE v. CITY OF DURHAM ET AL.
• Court: North Carolina Supreme Court

97 S.E. 33

176 N.C. 289

COLE v. CITY OF DURHAM ET AL.

No. 323.

Supreme Court of North Carolina

October 30, 1918

Brown J., dissenting in part.

Appeal from Superior Court, Durham County; Bond, Judge.

Action by Bessie Cole against the City of Durham and others. From judgment of nonsuit as to defendant city, and judgment for plaintiff as to the other defendants, the latter appeal. No error.

In action for injuries to pedestrian when coal doors in sidewalk were opened without warning, question of contributory negligence held for jury.

This action is brought by the plaintiff against the city of Durham, Strauss-Rosenberg Company, and the Carolina Light & Power Company to recover damages for injuries sustained by falling into a coal hole about 4 by 6 feet in the sidewalk on Main, the principal business street of the city of Durham. On July 30th the plaintiff was going from her home about 8 o'clock in the morning to C. W. Kendall's store where she worked as a milliner. The evidence discloses that when plaintiff reached the point in front of Strauss-Rosenberg Company's store, some one passed her on the north, and that she stepped a little to the south upon the steel doors that covered the coal hole and constituted a part of the sidewalk, and when she did so the door was pushed up from underneath and she was thrown to the ground and injured; that at the time she approached the coal hole a member of the firm of Strauss-Rosenberg Company was standing in the front door of the store, and a colored man in workman's garb was standing east of the coal hole doors that the defendants Strauss-Rosenberg Company had purchased from the defendant power company five tons of coke, to be delivered in the basement of said Strauss-Rosenberg's store about July 30th, the date of the injury; that the power company had employed Allen Jeffries to make the delivery of the coke, and that the colored man standing near the coal hole was the son of Allen Jeffries, who had been sent with a load of coke; the son (George Jeffries) told one of the firm of Strauss-Rosenberg Company that he had a load of coke to unload, and a young 15 year old boy was sent to the basement to unfasten and open the coal hole doors, and this fact was known by defendant Rosenberg, and the colored man, George Jeffries, who was sent to deliver the coke, and who was standing just east of the doors when the injury happened. It was not contended by plaintiff that the coal hole doors were dangerous when closed.

Plaintiff testified, in part, as follows:

"I had to step on the door to pass the person I was meeting. I turned to get out of the way of some one and stepped on this coal hole door. I kept my left foot on the sidewalk until I raised it up and it went under the edge of the door (demonstrating to jury). I could not tell you whether I was in the middle of the sidewalk coming down the street until I got to the doors or not. I was walking so that I had to step on that door. If I had kept straight on and had not turned I would have passed by the door, I suppose, without stepping on it. Some one passed me though. I stepped my right foot on the door and it bumped me up so I had to fall. The first time I stepped on the door to my knowledge I put my right foot on the door and it bumped me up, and I tried to catch hold with my left foot, and it caught under the door and threw me. * * * Before I fell, I saw the coke wagon standing there and that is why I looked around. That was before I reached the door. I knew they were to put the coke in that hole, of course. The doors were down when I stepped on them. No one was standing there to open it. The man didn't tell me to stay off. The man was standing where I said he was when I first saw him. I don't know that I saw him when I stepped on the door. If they had been opening the door I would not have stepped on it. I saw a man standing there; he was standing on the sidewalk at the southeast corner of the door. The door opened back towards him. * * * When Mr. Strauss came to see me after the injury he told me he had sent his boy to unlatch the door and the boy said he pushed the door up. I have stated as a matter of fact that the doors were flat down when I first stepped on them. They bumped up under my feet. The wagon was backed up to the curbing, and the driver was standing on the sidewalk to the east of the doors. He was not standing on the doors, but was standing on the sidewalk to the east of the doors. A few seconds before I stepped on the door I saw him standing up straight. If he had leaned forward to catch hold of the door I certainly could have seen him. I could have seen the motion of him if I had been looking down on the ground. It would have taken a mighty long man to have reached over there to catch on this door from where I saw him standing at that time and raise that catch. He could not have done it without my seeing him. The man or lady whom I spoke of as coming from the east, as I was coming from the west, caused me to step on the side to let them pass."

The jury returned as their verdict upon the four issues submitted by the court that the defendants, except the city of Durham, were guilty of negligence as alleged in the complaint; that plaintiff was not guilty of contributory negligence; and then assessed her damages at $5,000.

There was in force at the time of this occurrence an ordinance of the city of Durham as follows:

"Every owner or occupant of a house on a street which has a cellar door or vault in a public footway shall keep the same in good repair, and shall keep the door closed at all times, or a guard stationed there to warn the public."

A penalty was attached for disobedience of it.

The court entered judgment of nonsuit as to the city of Durham, and judgment upon the verdict as to the other defendants, and the latter separately appealed.

R. O. Everett, of Durham, and J. S. Manning, of Raleigh, for appellant Strauss-Rosenberg Co.

William G. Bramham, of Durham, for appellant Carolina Power & Light Co.

Brawley & Gantt and Scarlett & Scarlett, all of Durham, for appellee.

WALKER, J. (after stating the facts as above).

The record in this case is quite voluminous, and the briefs, lengthy but very ably prepared, have been of great assistance to us in eliminating from the great mass of testimony and argument the real questions at issue, which are few, and, as we think, free from any difficulty.

We may say in the beginning that there is no complaint from any one of the coal cellar and its doors either as to construction or the material used. The owner in this respect had fully complied with the law and his duty in the premises, in making the opening in the sidewalk both safe for the public and practically convenient for those using it, as a receptacle for the storage of coal, which is the purpose for which it was designed.

The simple facts are that the plaintiff was in the rightful use of the sidewalk in this populous and thriving city, coming from her home to her place of business about 8 o'clock in the morning. As she approached the doors of the cellar in the sidewalk, near its middle, over which pedestrians constantly passed and repassed, she met some one walking on the same side that she was, and this caused her to step a little to the south side, with her right foot on the door of the cellar, and as she did so it bounced up and threw her into the street in a sitting posture. She stated that the door was pushed up suddenly and unexpectedly, as it was "flat down" when she stepped upon it. No one gave any signal or warning of danger, or that the door was then being used and would be raised by a man in the cellar or any other person just at that time, and there is evidence to show that she felt justified in supposing that she could pass over the doors safely, As there was a motion for nonsuit we must assume all evidence in her favor to be true, and we need therefore, refer to so much only as tends to prove an actionable wrong to her. George Jeffries, who was driver of the truck filled with coke, was near the cellar doors, but was not raising them, or if he did assist in opening the doors by raising them from the outside, while Raymond Shives, servant of defendants Strauss-Rosenberg Company, who was in the cellar, was pushing them from below, he gave plaintiff no warning of the impending danger, and by his inaction led her to believe that no harm would come to her if she proceeded on her way. There is evidence that one of the defendants, Charles Rosenberg, had been told by George Jeffries, the driver, in the store, that he had coke in the truck at the front, to be placed in the cellar, and that he could not raise the doors; and Rosenberg, who was in the gallery of the store, then "called down" to Raymond Shives and ordered him to the basement to unlock the door, which order he obeyed, and in doing so he unlocked the door, and, receiving from the man on the sidewalk no answer to his signal that the door was unlocked, he raised the doors himself. This was manifestly negligence on his part and for it his employers are responsible. The mere fact that he got no answer from the man supposed to be in position on the sidewalk to raise the doors was some notice to him that the latter was not on guard, and that it would be dangerous to raise the door, and it proved to be so in this case. He could not know the situation above him with the doors between him and the surface of the sidwalk, and it was not only negligence, but recklessness, to have acted as he did under the circumstances; as it was the contention of the defendant Strauss-Rosenberg Company, and there was proof to support it, that the doors were to be raised by some one on the sidewalk and not from the basement. Raymond Shives was seen in the cellar...