Gasque v. City of Asheville

• Decision Date: 27 February 1935
• Docket Number: 106.
• Citation: 178 S.E. 848,207 N.C. 821
• Parties: GASQUE v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

178 S.E. 848

207 N.C. 821

GASQUE v. CITY OF ASHEVILLE.

No. 106.

Supreme Court of North Carolina

February 27, 1935

Appeal from Superior Court, Buncombe County; Schenck, Judge.

Action by J. S. Gasque against the City of Asheville. Judgment for plaintiff, and defendant appeals.

No error.

Failure to submit issues tendered by defendant held not error, where matters set forth therein were considered under first issue given and charge of court on first issue took into consideration facts involved in issues tendered by defendant and issues submitted afforded parties opportunity to introduce all pertinent evidence and apply it fairly.

This was an action for actionable negligence brought by plaintiff against defendant, alleging damage. Plaintiff alleged that by reason of stepping into a water meter on the street and it belonging to defendant, he had been injured by the negligence of the defendant. The defendant denied the material allegations of the complaint and set up the plea of contributory negligence. Notice of the claim of plaintiff against defendant was duly filed as required by the statute.

The evidence on the part of plaintiff was to the effect: That in the city of West Asheville, about 9 o'clock on the evening of April 7, 1933, he had tire trouble and started to a filling station with tubes to have them fixed. He was proceeding on the north side of Haywood road. There was a water meter in front of 841 Haywood road. Plaintiff testified, in part: "When I stepped on the lid of a partly covered water meter box-when I did, my left foot and leg went down in the hole and in some way it turned the lid in a vertical position. I don't know whether exactly straight or not, but I fell, and as I did the edge of the lid caught me between my legs on the point of my spine and on my right testicle. That was right in the crotch. I gave a powerful lunge to come out. It was instant pain. In doing so I tripped in some way and fell again. I fell in sort of a sitting position. I don't know whether a rock, brick or edge of the rim, but I struck my back a little higher up on some blunt object. Then I got to my feet. I was experiencing the most excruciating pain of my life and the last I remember I grabbed myself in the crotch and was drawn double everything turned dark to me. * * * I don't believe I could have seen the condition of the meter box. I did not see it. There was a hedge there and no lights. The nearest light was 202 1/2 feet from the meter box. I don't know how dark it was. I could not see that box or that lid there, partly covered, or I would not have stepped on it. I know it was not fully covered or my leg would not have gone in. I cannot swear exactly what position it was laying in for I did not see it prior to the time I stepped on it. I don't know what condition it was in, except that it, the lid, turned and caught me between the crotch. One caught me in the crotch and I am sure the other was in the hole, somewhere around the hole, bound to be. It was unexpected and I was hurt so bad I cannot give a detailed description of it. I don't know how deep the meter box was."

Plaintiff was at once taken to a hospital and was unconscious for four or five days, and he stayed in the hospital thirty days. The first six months of his injury, he spent the greater part of the time in bed except to go up and visit the doctors.

Dr. J. W. Deyton testified, in part: "The injury will be permanent. In my opinion, he will never be able to perform heavy manual labor or an undue amount of exercise whether in sports or labor."

Edna Kitchin, a graduate nurse in the hospital, testified, in part: "Mr. Gasque was brought into the Hospital I think around 9 o'clock, or a few minutes past 9, it was not earlier than 9 at night. The man seemed totally unconscious. I nursed him 30 days, devoting my entire attention to him. Twenty-hour duty, with four hours off during the day or night, when it was convenient for another nurse to look after him, and he was resting so that I could be away. I cannot say how long he remained unconscious, but I would say around four or five days. His right eye was swollen and closed entirely and, of course, he was lifeless, and he was bleeding from his nose and mouth and also from his pelvic region. He bled from his pelvic region every day the entire time he was in the Hospital. The bleeding came from the inside. There was no indication on the outside. * * * I was present at an operation on his back or spinal puncture. There was an attempt made to do a lumbar puncture, but the doctors were not successful, due to the nervous condition of the patient. That was while he was in the hospital. I think they tried it twice, but I cannot say exactly. It was more than once." The plaintiff was thirty-one years of age, weighed 168 pounds, and prior to the injury was a strong and healthy man.

M. E. Fox testified, in part: "I was hailed by someone and found him (J. S. Gasque) in a water meter. I learned later, it was Mr. Johnson. * * * I got out. I saw Mr. Gasque with one leg in the water meter, down in the water meter box and the lid of the water box and side of his head on the sidewalk. The side of his head was laying over on the sidewalk and his leg down in there. It was on my right hand side going west, the north side. It was on the sidewalk. I think a little to the right hand side, the north side. There was a kind of sloped bank by the sidewalk. The meter box was close to that, a dirt bank. Gasque was just laying there like a dead man, so I picked him up out of the meter box and I told Mr. Johnson to let's carry him to the Hospital. I picked him up, Johnson seemed to be just scared. I picked him up and put him in my car and carried him to Dr. Gardner's Hospital. * * * I picked him up in my arms and kicked the lid up over there but it did not seem to fit so well and I told the policeman he better go see about it. When I stepped on the lid it kind of tilted. * * * It was so dark I could not see whether dirt was on the meter box."

Howard Johnson testified, in part: "I don't know how much it would weigh. It was lighter than the ones on the meter right below there, in front of the house just below this meter, in front of 841. * * * The old meter lids rested on a rim and a flange that was set in the concrete in the sidewalk. That was in 1933. It did not sit there hardly at all because there was too much dirt all around it. Dirt in the flange. It did not rest flat. One side might have been higher than the other. I don't say that it did. I cut the dirt down, but I did not notice whether one side was higher or lower than the other. I don't know whether one was higher or not. It was an ordinary meter lid like the city has used for a long time until Mr. Israel put the new ones on that has a wide flange that sits down on the lid. This was one of the old style lids."

James G. Hyde testified, in part: "We went there and Johnson turned the spot light on the box that you can shine, he got on his knees and stood up. I noticed him cleaning it out, and that is about all that I know about it. The box is about six inches from the bank outside,-the nearest point of the box from the outside of the street. There is a small bank. It was six inches from the bank. The right hand side. * * * The dirt bank seemed to be evidently very hard, because Mr. Johnson took some time to get it out. Evidently back in there hard because he had a knife cleaning it out. Before he cleaned it out he pushed it over to the proper place and moved it. It evidently had some at different points because it had a tendency to rock, and that is when he took it up and cleaned it. He tried to fit it in first. It tilted back and forth. He then took a knife and tried to remove the dirt. The dirt bank was fourteen inches high, maybe a little higher, and there is a hedge on top of that. It was a privet hedge. I don't know hardly how to describe the lid. It was one of those regular little lids with checked top. There were not any flanges on the top piece, I don't think."

H. C. Smith testified, in part:

"I went up there to the water meter hole at 841 Haywood Road. I have my car and Mr. Gasque's younger brother was with me. I drove my car and Mr. Gasque's younger brother was with me, and Mr. Robinson and two or three other parties went in another car. We went to this hole, and I was one of the first there. I observed the lid on the hole at that time. I first stepped on the edge of the lid, and it would rock, the side I would step on. I would go down in the hole and the other end on the other side would tilt up. I lifted the lid out of the hole. I noticed that there was dirt caked around inside rim of this meter box and the lid would not fit down in the hole.

I took the lid out without any kind of instrument. I took it out with my hand. There was dirt caked around this inner rim and there was one of the men in the party had a flashlight that was turned on this hole, and either Mr. Robinson or Mr. Johnson, who was up there by that time, tried to scrape out the dirt with a coin and could not do it with that. Mr. Johnson was there. It was either him or one of the other parties. They did not have any luck with the coin so a knife was used to cut the dirt around the inside of the ring. The lid did not hit by then. It would rattle when you would press on it with your foot. It would not fit at all. It was raised above the level of the rim, and I just picked it up with my fingers."

E. M. Israel testified, in part:

"I was born and raised in Asheville, a little over 62 years ago. I was an official of the City of Asheville for a little over 30 1/2 years, having maintenance of water and sewer, making connections and setting meters and gravity mains coming in. I was so engaged when the Town of

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