Dillon v. City of Raleigh
| Decision Date | 21 March 1899 |
| Citation | 32 S.E. 548,124 N.C. 184 |
| Parties | DILLON v. CITY OF RALEIGH. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wake county; Bryan, Judge.
Action by Hattie N. Dillon against the city of Raleigh. Judgment for plaintiff, and defendant appeals. Affirmed.
Evidence of changes made after an accident is admissible to show the practicability of making the place safer.
Perrin Busbee and Douglass & Simms, for appellant.
Argo & Snow, for appellee.
This action is based on the alleged omission of duty on the part of the defendant, in failing to keep its streets in repair and removing obstructions therefrom, in consequence of which the plaintiff sustained personal injuries. There is practically no disagreement as to the facts. Many years ago the city was duly organized as a municipal corporation, with proper municipal officers; and it was laid out in squares and streets, and has so continued to the present time. One of its principal streets leads from the capitol building southward to the corporate limits, and there connects with a public county road, along which street and road the public were accustomed to travel, and on which street the injury occurred. By its charter (Acts 1848-49, c. 82) the North Carolina Railroad was permitted to enter the corporate limits of defendant city, and to cross its streets, and it did cross said street about 15 feet above the level of the street. The railroad runs diagonally across the street, and its stringers are supported by four sets of upright posts or benches standing in the street. These benches are 10 or 12 feet long and about 12 feet apart. They stand at right angles with the railroad stringers, and form an acute angle of 45 degrees with the direct course of the street. The existence and presence of these upright benches in the street were known to the municipal authorities of the city at and before the date of the injury alleged in the complaint. In January, 1896, the plaintiff, with another lady, was driving a gentle horse along said street, in the direction of the railroad crossing when suddenly the horse became frightened, without any known cause, and dashed through said benches, and the buggy struck the far-off corner of one of them, and the injury complained of was the result. The issues submitted were:
The defendant caused the railroad company to be made a party defendant, and filed a "cross complaint," under section 424 of the Code, against said railroad company,--to which a demurrer was filed, and the cross complaint was dismissed,--alleging that said road was primarily liable for any injury sustained by the plaintiff. While we do not propose to discuss the liability or nonliability of the railroad company, we see no error in the judgment, as no good cause of action was stated in the cross complaint.
In the charter of said railroad company, allowing it to pass through the city limits and cross its streets, section 26 provides "that the said company [railroad] shall not obstruct any public road without constructing another equally as good and as convenient," etc. The main question presented to this court is, is the city defendant liable in damages to the plaintiff for alleged injury? In some jurisdictions liability in such cases is implied at common law; but in many of the different states, perhaps in all, we find the matter regulated by special or general statutory provisions. In our state the Code (section 3803) enacts that the commissioners of towns and cities "shall provide for keeping in proper repair the streets and bridges in the town, in the manner and to the extent they may deem best," etc. And section 3802 says, "They may pass laws for abating or preventing nuisances of any kind, and for preserving the health of...
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