Foster v. Town of Tryon

• Decision Date: 12 May 1915
• Docket Number: 490.
• Citation: 85 S.E. 211,169 N.C. 182
• Parties: FOSTER v. TOWN OF TRYON.
• Court: North Carolina Supreme Court

85 S.E. 211

169 N.C. 182

FOSTER v. TOWN OF TRYON.

No. 490.

Supreme Court of North Carolina

May 12, 1915

Appeal from Superior Court, Polk County; Webb, Judge.

Action by J. H. Foster, administrator of Charlie Foster, deceased against the Town of Tryon, a municipal corporation. Judgment for plaintiff, and defendant appeals. No error.

This is an action to recover damages for wrongful death, the plaintiff alleging that his intestate was killed by the negligence of the defendant. The intestate, a boy about 12 years of age, was riding on horseback on one of the principal streets of the defendant town, when his horse stepped in a hole about 6 or 8 inches wide, 10 or 12 inches long, and 18 inches deep, and stumbled and caused the death of the intestate by throwing him or falling on him. There was a verdict and judgment for the plaintiff, and the defendant appealed, assigning as error the refusal of his honor to enter judgment of nonsuit upon the conclusion of the whole evidence.

In an action for personal injuries from a defect in a street, the question of actual or constructive notice to the city of the defect is for the jury, in view of the locality, whether the street is much frequented, and whether the defect is conspicuous.

Smith Shipman & Bridges, of Hendersonville, and Solomon Gallert, of Rutherfordton, for appellant.

Spainhour & Mull, of Morganton, for appellee.

ALLEN J.

The duty which municipal corporations owe to those using their streets, and the degree of responsibility imposed upon them by law, are stated clearly and accurately by Associate Justice Hoke in Fitzgerald v. Concord, 140 N.C. 110 52 S.E. 309, which has been approved in Brown v. Durham, 141 N.C. 252, 53 S.E. 513; Revis v. Raleigh, 150 N.C. 353, 63 S.E. 1049; Johnson v. Raleigh, 156 N.C. 271, 72 S.E. 368; Bailey v. Winston, 157 N.C. 259, 72 S.E. 966, and in other cases. He says:

"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 keep them so to the extent that this can be accomplished by proper and reasonable care and continuing supervision. * * * The town, however, is not held to warrant that the condition of its streets, etc., shall be at all times absolutely safe. It is only responsible for negligent breach of duty, and, to establish such responsibility, it is not sufficient to show that a defect exists and an injury has been caused thereby. It must be further shown that the officers of the town 'knew, or by ordinary diligence might have discovered, the defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.' "

Notice of the defect in or dangerous condition of the street may be actual or constructive, and knowledge will be imputed to the corporation if its officers could by the exercise of ordinary care discover the defect and remedy it.

The doctrine of constructive notice rests upon the duty to inspect and repair, or, as stated by Justice Walker in Bailey v. Winston, supra:

"The duty * * * to exercise a reasonable and continuing supervision over its streets, in order that it may know they are kept in safe and sound condition for use."

Speaking of the necessity for notice and of the circumstances under which it will be implied, Mr. Elliott says, in his treatise on Roads and Streets (section 806 et seq.):

"Whether

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