Ferguson v. City of Asheville
Decision Date | 25 May 1938 |
Citation | 197 S.E. 146,213 N.C. 569 |
Parties | FERGUSON v. CITY OF ASHEVILLE (two cases). |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; A. Hall Johnston Judge.
Consolidated actions by E. J. Ferguson, Jr., by his next friend, Eric J Ferguson, and by Wanda Ferguson, by her next friend, Eric J Ferguson, against the City of Asheville for injuries sustained in an automobile accident. From judgments as of nonsuit, plaintiffs appeal.
Reversed.
In motorist's and guest's actions against city for injuries sustained when right front wheel of automobile struck and mounted a wooden ramp along curb, deflecting automobile over curb and into a tree at night, whether motorist was guilty of such negligence as would insulate any negligence of city was for jury under evidence that street was straight, level, and from 25 to 30 feet wide, that ramp extended less than 2 feet from curb, and that there were no other vehicles on street at time of accident.
In motorist's and guest's actions against city for injuries sustained when right front wheel of automobile struck and mounted a wooden ramp along curb, deflecting automobile over curb and into a tree at night, whether motorist was guilty of contributory negligence barring recovery was for jury under evidence that ramp was of the same color as the street, that lights on automobile were all right, and that ramp was plainly visible.
Actions to recover damages for personal injuries inflicted by alleged actionable negligence.
These two actions grew out of the same occurrence. That of E. J. Ferguson by his next friend, Eric J. Ferguson, was instituted in Superior Court, and that of Wanda F. Ferguson by her next friend, Eric J. Ferguson, in the General County Court of Buncombe. Upon motion the latter was transferred to the Superior Court. By consent the two were consolidated for the purpose of trial.
The plaintiffs allege, and on the trial introduced evidence tending to show that: On the night of January 17, 1937, at about seven thirty o'clock the plaintiff, E. J. Ferguson, aged seventeen years, with his sister, the plaintiff, Wanda Ferguson, aged fourteen years, Margaret Horton, aged ------ years, and Jimmie Bartlett, aged fifteen years, entered his automobile in front of the residence of his father, Eric Ferguson, on the west side of Vermont Ave., in West Asheville, and started for a ride, traveling south along the west edge of said Avenue. He was driving the car. After passing beyond the block in which his father lived and over the first intersecting street, Maple Crescent, approximately two hundred yards from where he started, and while traveling twenty to twenty five miles per hour, the right front wheel of the car struck and mounted a small bridge which the parties call a "ramp", deflecting the car over the curbing and into a tree, tearing up the car and resulting in personal injuries to the plaintiffs.
Vermont Ave. is from twenty five to thirty feet wide. On the west side there is a concrete curb, six or eight inches high, with concrete footing which extends twenty four to thirty inches out toward the center of the street, thereby forming a gutter. The remainder of the street is paved with asphalt. The surfaces of the gutter and the paving come together on a level. The street is smooth from curb to curb, and straight.
The "ramp" is constructed of two heavy boards set on and fastened to an iron frame or girders. It is twelve to fourteen feet long and extends to within two or three inches of the asphalt paving. It is so placed that one edge is on a level with the top of the curb and the other bevelled to the level of the gutter, thereby forming a floor or bridge for driveway into the adjacent lot, for which purpose it was so placed. It is fastened to iron spikes by chains which act as hinges by which it may be turned from the street on to the grass plot. More than three years ago city employees were seen lifting the "ramp", cleaning under it and then replacing it. In the grass plot between the sidewalk and the curb, on the west side, there is a row of heavily branched maple trees, described by the witnesses as standing from fifteen to thirty feet apart, and from one to three feet from the curb,-one on each side of the "ramp". The one to the south, and with which the car collided, is eight to fifteen feet from the "ramp". There is a small electric light on the west side of the Avenue near the corner of Maple Crescent. There is an arc light in the center of the intersection between said Avenue and Olney Road, the next street below. The branches of these trees diffuse the rays and obstruct the lights in shining on the "ramp".
Plaintiff, E. J. Ferguson, Jr., testified in part that: He and Margaret Horton were sitting on the front seat, and Wanda Ferguson and Jimmie Bartlett on the rear seat. He did not see the "ramp" before he hit it. . Trees are all around. The street is dark. The street light does not throw light on the "ramp". The lights of the automobile were "all right" and were burning. No other cars were on the street at the time. He had had driver's license about a month, was not accustomed to drive down the avenue, and did not know the "ramp" was there. Miss Horton was lighting a cigarette for him at the time of, or just before the accident. She held it in her mouth while she lit it. The lighted match did not have anything to do with his driving.
Witness, J. W. Bartlett, father of Jimmie, testified: That more than three years ago he resided for a year just off Vermont Ave., that in going to and from his work he walked on the sidewalk on west side of the Avenue two or four times each day; and that he saw the "ramp" every time he chanced to look in the direction of its location.
Photographs of the "ramp", exhibited as a part of the record in the Supreme Court, purport to show as a physical fact that the "ramp" is plainly visible.
The plaintiff, Wanda Ferguson, testified in part: "I was in the back seat * * * I saw the tree coming, and that is all I can recall".
In each case defendant denies the material allegations of the complaint. In the case of E. J. Ferguson, Jr., by his next friend, defendant pleads contributory negligence in bar of his right to recover. In the case of Wanda Ferguson, by her next friend, defendant pleads the negligence of E. J. Ferguson, Jr., as the proximate cause of the injury, if any, to the guest in the automobile, his sister.
From judgments as of nonsuit, in each case, at close of plaintiffs' evidence, the respective plaintiffs appealed to the Supreme Court and assign error.
Don C. Young, of Asheville, for appellants.
Philip C. Cocke, Jr., and Jones, Ward & Jones, all of Asheville, for appellee.
Upon the evidence presented on this appeal we are of opinion that the motion for judgment as of nonsuit was improperly entered in each case.
Consideration thereof raises three questions which are determinative of this appeal: (1) Is there sufficient evidence of negligence on the part of defendant to require the submission to the jury of an issue with respect thereto? (2) Is there such evidence of negligence on the part of the plaintiff, E. J. Ferguson, Jr., the driver of the automobile as to insulate any negligence on the part of the defendant as a matter of law? (3) Is the plaintiff, E. J. Ferguson, Jr., guilty of contributory negligence as a matter of law? The first question is answered in the affirmative, and the second and third in the negative. Smith v. Sink, 211 N.C. 725, 192 S.E. 108.
(1). The duties and liabilities of a municipal corporation with respect to defects and obstructions in its streets have been the subject of numerous decisions of this Court. "The exercise of due care to keep its streets in a reasonably safe and suitable condition is one of the positive obligations imposed upon a municipal corporation." Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807, and cases cited.
In the recent case of Oliver v. Raleigh, 212 N.C. 465, 466, 193 S.E. 853, Barnhill, J., pertinently states (page 854):
A municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are reasonably safe for travel. Jones v. Greensboro, 124 N.C. 310, 32 S.E. 675; Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309; Smith v. Winston, 162 N.C. 50, 77 S.E. 1093; Alexander v. Statesville, 165 N.C. 527, 81 S.E. 763; Sehorn v. Charlotte, 171 N.C. 540, 88 S.E. 782; Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Willis v. New Bern, 191 N.C. 507, 132 S.E. 286; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 663; Pickett v. Carolina Ry., 200 N.C. 750, 158 S.E. 398; Speas v. Greensboro, supra; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573; Oliver v. Raleigh, supra.
It is only against danger which can or ought to be anticipated in the exercise of ordinary care and prudence that the municipality is bound to guard. Dillon v. Raleigh, 124 N.C. 184, 32 S.E. 548; Fitzgerald v. Concord, supra; Sehorn v. Charlotte, supra.
"It is not an absolute duty imposed on the corporation to light its...
To continue reading
Request your trial