Gettys v. Town of Marion

• Decision Date: 09 October 1940
• Docket Number: 168.
• Citation: 10 S.E.2d 799,218 N.C. 266
• Parties: GETTYS v. TOWN OF MARION.
• Court: North Carolina Supreme Court

10 S.E.2d 799

218 N.C. 266

GETTYS v. TOWN OF MARION.

No. 168.

Supreme Court of North Carolina

October 9, 1940

Civil action in tort to recover damages for personal injuries.

Plaintiff walked from the building in which she was employed across a sidewalk of the defendant to a car parked at the curb for the purpose of getting a lunch box. As she turned and started back to the building she stepped on the lid or cap of a water meter. The lid turned or slipped and she fell, suffering physical injuries. The water meter box was located on the grass or tree plot between the paved portion of the sidewalk and the curb.

The meter box consists of a hollow cylinder constructed of iron or steel about 10 inches in diameter and about 24 inches in length, and is set perpendicular in the ground so that the top is slightly lower than the surrounding ground. It has a cap or lid about 11 inches in diameter which covers the top of the water meter. The ground between the curb and the sidewalk is about 18 inches high at the curb and gradually slopes down to the paved portion of the sidewalk. When the lid is off it leaves a hollow in the ground about 10 inches in diameter and about 2 feet deep. The top of the water box was 1 1/2 or 2 inches below the dirt which had been piled around it and sand had blown over the lid where there was no grass to protect it. Plaintiff saw the depressed place in the ground before she stepped in it but did not realize that it was a meter box.

The plaintiff alleges negligence on the part of the defendant in that it placed the meter box in a dangerous place; that the meter box was negligently constructed and placed below the level of the surrounding ground where the ground was on an incline and where foreign substances accumulated at the edges and around the up-right end of the water meter; that the defendant negligently failed to maintain the meter box at the top in a proper and safe condition so that the lid would not and did not fit securely; and that the town failed to properly inspect.

At the conclusion of plaintiff's evidence the defendant moved to dismiss as of nonsuit. The motion was allowed and the judgment was entered accordingly. The plaintiff excepted and appealed.

Roy W. Davis and G. F. Washburn, both of Marion, for appellant.

Robert W. Proctor, of Marion, and E. P. Dameron, of Greensboro, for appellee.

BARNHILL Justice.

While it is alleged that the up-right end of the hollow cylinder composing the meter box has a groove about 1 1/2 to 2 inches deep on its upper end in which the lid or cap is supposed to fit when placed thereon, there is no evidence that the cap was not in fact properly placed in the groove or that it was otherwise defective in construction or in maintenance. The plaintiff relies upon the happening of the event as evidence tending to show that the meter box top was not properly placed or was in defective condition by reason of the sand which had washed or blown on it, coupled with the fact that the meter box was placed between the paved portion of the sidewalk and the curb where the land sloped from the curb to the sidewalk. She saw the depression in the ground where the meter box was located before she stepped thereon but could not tell the condition in which the meter box and top was by reason of the sand which had blown over it.

Under the circumstances of this case does res ipsa loquitur apply? If not, the judgment below must be affirmed.

The grass plot or tree space between the sidewalk and curb is a part of the street which a municipality is bound to keep in a reasonably safe condition. 43 C.J. 989, sec. 1772; see, also City of Birmingham v. Carle, 191 Ala. 539, 68 So 22, L.R.A.1915F, 797. In each case the way is to be pronounced sufficient or insufficient as it is or is not reasonably safe for the ordinary purpose of travel under the particular circumstances which exist in connection with that particular case. An obstruction or defect in a sidewalk causing an injury, to be actionable, must be such a one as to make the walk at the point of the accident dangerous or unsafe for a pedestrian using it with due care for his own protection. If the obstruction is of that character municipal responsibility follows upon competent proof of the essential elements of liability *** obstructions which do not render the sidewalk obviously dangerous or unsafe present municipal negligence as a question of fact. *** Necessary obstructions such as water hydrants, gas plugs, etc where the cause of injuries, do not make the municipality liable, provided they are not negligently constructed or maintained and are not in an improper place. 7 McQuillin Municipal Corp., 2d Ed., sec. 2976.

The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence and for negligence only; it is not an insurer of the safety of travelers, and it is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition for travel for those using them in a proper manner, 43 C.J. 998, but the municipality will not be liable for every defect or obstruction however slight or trivial or little likely to cause injury, or for every mere inequality or irregularity in the surface of the way; it is only against danger which can or ought to be anticipated, in the exercise of reasonable care and prudence, that the municipality is bound...