Fitzgerald v. City Of Concord

• Decision Date: 28 November 1905
• Citation: 140 N.C. 110,52 S.E. 309
• Court: North Carolina Supreme Court
• Parties: FITZGERALD . v. CITY OF CONCORD.

52 S.E. 309

140 N.C. 110

FITZGERALD .

v.CITY OF CONCORD.

Supreme Court of North Carolina.

Nov. 28, 1905.

1. Municipal Corporations — Defective Culverts—Repair—Duty Imposed.

Under Code, § 3803, requiring that cities and towns shall provide for keeping in proper repair the streets and bridges thereof, in the manner and to the extent that they may deem best, and may cause such improvements as may be necessary, etc., a town is not only bound to originally construct its sidewalks, drains, culverts, etc, in a sound condition, but is required to use reasonable care and continued supervision to keep them so.

[Ed. Note.—For cases in point, see vol. 36, Cent, Dig. Municipal Corporations, §§ 1591, 1612.]

2. Same—Defects—Notice.

In an action for injuries to a pedestrian, caused by a defective culvert in a street, plaintiff is bound to show, not only that the defect existed and that an injury was caused thereby, but that the officers of the town knew, or by ordinary diligence might have discovered, the defect, and that its character was such that injuries to travelers therefrom might reasonably be anticipated.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1641-1652.]

3. Same—Evidence—Question for Jury.

Where plaintiff was injured by falling into a hole in a culvert in a street at night, of the existence of which she had no knowledge, and could not see by reason of the darkness, and there was evidence that the culvert had been in a defective condition for several weeks, the town's negligence in failing to repair the same, etc., was for the jury.

[Ed. Note.—For cases in point, see vol. 36, Cent, Dig. Municipal Corporations, § 1747.]

Appeal from Superior Court, Cabarrus County; Justice, Judge.

Action by Rachel Fitzgerald against the city of Concord. From a judgment of nonsuit, plaintiff appeals. Reversed.

Action for negligence. There was evidence of the plaintiff tending to show that she was injured while walking along the streets of Concord, by reason of falling through a defective culvert. The plaintiff herself, on the principal question, testified, as follows: "I live on South Crowell street. On July 28, 1905, as I was going on my direct way home, down West Depot street and crossing the same, I entered South Crowell street on the bridge or culvert at the entrance of said street, and fell into a hole in the culvert. The plank seemed to be partly broken. As I went down, the planks held me fast, and I could not get out. I fell with all my weight on my left foot, very badly spraining it, and injuring my hip. I pushed down the plank with my hand and crawled out, and crawled over to a storehouse at the intersection of the streets. By holding to the house and getting the support of a stick, I was able to get to a near neighbor's house, and remained there during the night. The night was a very dark one. and there was no lights on the street, as the storm had put them out. I had not noticed this place before in the street." J. D. Gordon, a witness for the plaintiff, on his examination in chief testified: "I do business at the intersection of West Depot and South Crowell streets. I knew the culvert in question. The hole was 16 or 18 inches in diameter. The culvert was as long as the width of Crowell street, and was over the ditch on the south side of West Depot street. It was about 20 feet long, and was crossed by all who enter South Crowell street from West Depot street. It was used by those who enter the street walking and in vehicles. The culvert was considerably worn and covered with dirt. The top planks were worn, sagged, and broken, and could be seen through, and had been in this condition for several weeks before the plaintiff says she was hurt. South Crowell street is one of the principal streets in Concord. I saw the plaintiff afterwards, and she was limping, and is still limping." On the close of the testimony for the plaintiff, on motion of defendant, there was judgment of nonsuit, and the plaintiff excepted and appealed.

W. G. Means and M. B. Stickley, for appellant.

Montgomery & Crowell and L. T. Hartsell, for appellee.

HOKE, J. (after stating the case). There was error in directing a nonsuit in this case and the plaintiff is entitled to have her cause submitted to a jury. The governing authorities of a town are charged with the duty of keeping their streets and sidewalks, drains, culverts, etc., in a reasonably safe condition; and their duty does not end at all with putting them in a safe and sound condition originally, but they are required to...