Darden Et Ux v. Town Of Plymouth

• Decision Date: 16 September 1914
• Docket Number: (No. 27.)
• Citation: 82 S.E. 829,166 N.C. 492
• Parties: DARDEN et ux. v. TOWN OF PLYMOUTH.
• Court: North Carolina Supreme Court

82 S.E. 829

(166 N.C. 492)

DARDEN et ux.

v.TOWN OF PLYMOUTH.

(No. 27.)

Supreme Court of North Carolina.

Sept. 16, 1914.

Appeal from Superior Court, Washington County; Ferguson, Judge.

Action by M. G. Darden and wife against the Town of Plymouth, to recover damages for physical injuries caused by defendant's alleged negligence in failing to keep its streets in proper repair. From a judgment of nonsuit, plaintiff excepted and appealed.

W. M. Bond, Jr., of Plymouth, for appellants.

L. W. Gaylord, of Plymouth, and H. S. Ward, of Washington, N. C, for appellee.

HOKE, J. [1, 2] The evidence on the part of plaintiff tended to show that, in September, 1912, about 9 p. m. feme plaintiff was injured by a fall as she was endeavoring to go along Water street in Plymouth; that the injury occurred under a shed over the street from Hampton's warehouse, a brick structure abutting on the street; that on the outer edge of the sidewalk at this place there was some kind of a counter and on the inner edge, next the building, there was a pile of loose lumber sloping towards the sidewalk and narrowing same so that two people could not pass abreast. As we understand the facts, the surface of the sidewalk here was uneven, by reason of loose brick and pieces of lumber falling on the same, and the opposite sidewalk was also obstructed by brick and building material placed there for the erection of some building on that side. That there were electric lights in the town, but the same were so placed that the shadow of the brick warehouse and the shed over the sidewalk prevented proper effect, and it was right dark at the time and place the injury occurred; that this pile of lumber and the condition of the sidewalk at the place in question had existed for two months and more; that the warehouse belonged to one of the town aldermen; that the office of the chief of police was some distance below, and that officer, himself, passed the place at least two or three times every day; that the husband's place of business was on the same street, just above the warehouse, and, on the night in question, about 9 p. m., feme plaintiff, who assisted in her husband's business, had left the store and was on her way home, when she fell on the sidewalk by reason of the lumber pile and the uneven surface there and received severe physical injuries, from which she had not yet recovered. The witness stated that she was mindful of the pile of lumber, and was doing what she could to avoid being hurt but, notwithstanding her efforts, she stumbled and fell and received the injuries, as stated and described fully in the evidence. From this, a fair summary of the facts making in plaintiff's favor, as they now appear of record, we think that the order of nonsuit was erroneous, and the same must be set aside; for, under our decisions applicable, if these facts are established, they permit the in-ference of culpable negligence on the part of the town...