Harvell v. City of Wilmington

Decision Date04 January 1939
Docket Number594.
Citation200 S.E. 367,214 N.C. 608
PartiesHARVELL v. CITY OF WILMINGTON et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, New Hanover County; E. H. Cranmer Judge.

Action by Hugh Duncan Harvell, by his next friend, Duncan A Harvell, against City of Wilmington and Atlantic Coast Line Railroad Company for injuries sustained when an automobile in which plaintiff was riding was driven over an embankment. From an adverse judgment, plaintiff appeals.

Affirmed as to second named defendant, new trial as to first named defendant.

This is a civil action to recover damages for personal injuries which the plaintiff alleges were proximately caused by the negligence of the defendants.

Second Street in the City of Wilmington comes to a dead end at the edge of the property of the defendant railroad company. At this point there is a concrete perpendicular retaining wall about five feet above the level of the railroad property and about one foot above the level of Second Street as it now exists.

On the night of January 30, 1937, the plaintiff was a passenger on a car owned and operated by his father. The driver, thinking that he was on Third Street, which leads out of Wilmington in the direction of plaintiff's home, drove down Second Street and over the embankment on to the railroad property. As a result thereof plaintiff sustained certain personal injuries. There is evidence that at the time plaintiff's father, the owner and operator of the car, was under the influence of intoxicating liquors.

At the conclusion of the evidence the court entered judgment of nonsuit as to the defendant railroad company and submitted appropriate issues to the jury on the plaintiff's cause of action against the defendant city. The jury having answered the issue of negligence in the negative, judgment was entered that the plaintiff recover nothing. The plaintiff excepted and appealed.

E. K Bryan, of Wilmington, for appellant.

Wm. B. Campbell and Alan A. Marshall, both of Wilmington, for appellee City of Wilmington.

Thos. W. Davis, V. E. Phelps, and J. O. Carr, all of Wilmington, for appellee Atlantic Coast Line R. Co.

BARNHILL Justice.

Second Street in the City of Wilmington extends north and south and Campbell Street extends east and west. The boundary line of the railroad property runs from southeast to northwest and intersects Second Street south of the point where Campbell Street extended would intersect said street, the point where said streets would intersect if extended being on the railroad property. Thus, Second Street terminates in a dead end at the northeasterly boundary line of the railroad property.

The evidence fails to disclose with any degree of certainty whether the retaining wall at the end of Second Street is on railroad property. It does not disclose with any considerable degree of certainty the party who constructed the wall. It does show, however, that there is a cold storage plant on the north side of Second Street adjacent to the railroad property and that the wall was built at the same time the cold storage plant was constructed, seemingly as an extension of the foundation wall of the cold storage plant building. It further discloses that this retaining wall was constructed in 1912 and that at that time Second Street from Red Cross Street north had not been paved; that this section of Second Street sloped downward toward the railroad property; and that rain water had washed away the surface of this portion of Second Street to the extent that at the boundary of the railroad property it was practically on a level. It further discloses that thereafter the City improved this section of Second Street and paved it with Belgium blocks. As a part of this improvement the surface was filled in and leveled so that the Belgium block pavement was about one foot below the top of the retaining wall. It appears, therefore, that if the condition existing at the north end of Second Street created a dangerous situation and evidenced a want of due care this situation was created by the city and not by the defendant railroad company. The duty to take such measures as were necessary to protect the traveling public against any danger that might exist due to the fact that the wall was only one foot above the surface of the improved street rested upon the city and not upon the defendant railroad company. We are of the opinion, therefore, that there was no error in the judgment of the court dismissing this action as of nonsuit as against the defendant railroad company.

There is evidence that Second Street as improved from Red Cross Street to the retaining wall is down grade. It further appears that sand, leaves and other debris had been washed down against the retaining wall and accumulated to such an extent that the existence of the wall was concealed and the street appeared to be on a level. The plaintiff further offered evidence tending to show that there was no barrier erected at or near the retaining wall to protect the traveling public against the hazard caused by the sudden drop in level between Second Street and the railroad property and that the city did not maintain or keep any light or other device at said point to warn the traveling public thereof.

On the night the plaintiff was injured his father, the operator of the car, drove northwardly on Second Street over the retaining wall on to the railroad property, the car going across the first tracks of the railroad and stopping on the second tracks. The defendant offered evidence tending to show that at the time the driver of the car was under the influence of liquor to such an extent that he did not know what he...

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