Duke v. Town Of Belhaven

• Decision Date: 26 September 1917
• Docket Number: (No. 35.)
• Citation: 93 S.E. 472
• Court: North Carolina Supreme Court
• Parties: DUKE. v. TOWN OF BELHAVEN.

93 S.E. 472

(174 N.C. 95)

DUKE.

v.TOWN OF BELHAVEN.

(No. 35.)

Supreme Court of North Carolina.

Sept. 26, 1917.

Appeal from Superior Court, Beaufort County; Daniels, Judge.

Action by J. C. Duke against the Town of Belhaven. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was to recover damages caused by alleged negligence of defendant growing out of the bad condition of its streets. On denial of liability and plea of contributory negligence, the jury rendered the following verdict:

"(1) Was plaintiff injured by the negligence of defendant as alleged? Answer: Yes.

"(2) Was plaintiff's injury, if any, caused by his own negligence contributory thereto? Answer: No.

"(3) What damages, if any, is plaintiff entitled to recover? Answer: $1,000."

Tooly & McMullan, of Belhaven, for appellant.

Ward & Grimes, of Washington, for appellee.

HOKE, J. We have carefully examined the record, and find no reason for disturbing the results of the trial. The evidence on the part of plaintiff tended to show that on De-cember 27, 1913, between 7 and 8 o'clock, good dark, and no light near the place, he was driving in a top buggy along Railroad street in the town of Belhaven, about the point this street entered into Pantego street, a much-frequented street of the town, when his horse blundered into an open ditch or "chasm" across the street, 18 inches deep and about the same width, and, as he jumped forward, he wheeled into Pantego street, turned the buggy over, throwing plaintiff out, and causing him serious and painful injuries from which he still suffers; that he was a deputy sheriff, and engaged in the performance of his duty on the night in question, and was driving along about 7 miles an hour, the usual gait of the horse; that it was too dark for him to note the ground ahead, and he did not know or have any reason to believe any such obstruction was on the street; that some months before, just after the September storm, he had noticed that people were driving around towards the edge of the street, but he supposed that whatever damage had been done by the storm had been repaired by the town authorities. The evidence was also that the buggy and harness were badly damaged at the time.

There was testimony on the part of defendant that there was no such ditch and chasm across the street as claimed by plaintiff; that there was a depression there, but so slight that the street authorities did not consider it in any way dangerous, and had therefore repaired other...