Cranfield v. City Of Winston-salem

• Decision Date: 29 April 1931
• Docket Number: No. 362.,362.
• Citation: 158 S.E. 241
• Court: North Carolina Supreme Court
• Parties: CRANFIELD. v. CITY OF WINSTON-SALEM.

158 S.E. 241

(200 N.C. 680)

CRANFIELD.

v.CITY OF WINSTON-SALEM.

No. 362.

Supreme Court of North Carolina.

April 29, 1931.

Appeal from Superior Court, Forsyth County; Cowper, Special Judge.

Action by N. W. Cranfield against the City of Winston-Salem. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Plaintiff alleged and offered evidence tending to show that on or about May 10, 1928, the city of Winston-Salem, in order to install a water main, dug a ditch on the west side of Lexington road. On the east side of the ditch the employees of the city erected a rope barricade. The rope was small, and was stretched from one stake to another; the stakes being approximately three feet high and fifteen or twenty feet apart. The dirt from the ditch was thrown out on the opposite side from the rope barricade. The plaintiff testified that, while he was walking on the right-hand side of the road next to the rope barricade and approaching Renegar's store, "there was a truck that had pulled up between Renegar's store and another store there * * * and the truck backed out from between those two stores right in front of me, crossways of the road. * * * That truck backed there and caught that rope and the colored man who was driving the truck, shifted his gears right quick and started forward, jerked up the stakes and jerked that rope right up under my arm and threw me sideways toward Mr. Renegar's store, and I hit the front bumper of Mr. Kearn's car, and it broke my leg to pieces. * * * The truck started up mighty fast. The rope had gotten hooked to the back of the truck." There was other evidence tending to show that the rope was about ten inches from the edge of the ditch.

The evidence further tended to show that the truck that caught the rope belonged to the city and was usually used for hauling garbage. The evidence further tended to show that at the time of the injury the truck was engaged in delivering a load of wood that the city of Winston-Salem had donated to a woman who was without fuel.

At the conclusion of the evidence, judgment of nonsuit was entered, and the plaintiff appealed.

J. M. Wells, Jr., and Archie Elledge, both of Winston-Salem, for appellant.

Parrish & Deal, of Winston-Salem, for appellee.

BROGDEN, J.

During the trial plaintiff asked leave of the court to amend the complaint in order to set up section 109 of the ordinances of the city, and that the city negligently failed to comply with said ordinances, and that such negligence was the proximate cause of his injury. The plaintiff offered in evidence section 109 of the defendant city, which is as follows: "It shall be unlawful for any person to make any excavation or do any work which may create or cause a dangerous condition in or on or near any street, alley, sidewalk or public place of the City, without placing and maintaining proper guard rails and signal lights, or other warnings, at, in or around the same sufficient to warn the public of such excavation or work, and to protect all persons using reasonable care from injuries on account of same."

The court refused to permit the amendment upon the ground that "said ordinance has no application to this case."

The plaintiff also offered the testimony of expert witnesses tending to show that approved barricades and such as were in general use in excavation work were constructed by the use of a buck and a plank; said bucksbeing placed from twelve to sixteen feet apart. Plaintiff also attempted to...