Houston v. City of Monroe

• Decision Date: 15 June 1938
• Docket Number: 6071.
• Citation: 197 S.E. 571,213 N.C. 788
• Parties: HOUSTON v. CITY OF MONROE.
• Court: North Carolina Supreme Court

197 S.E. 571

213 N.C. 788

HOUSTON v. CITY OF MONROE.

No. 6071.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Union County; W. F. Harding, Judge.

Action by Ella Houston against the City of Monroe for damages sustained when plaintiff fell on a street.From a judgment entered on a verdict for plaintiff after a nonsuit for defendant was refused, defendant appeals.

Reversed.

Where it appears from all the evidence that plaintiff ought not to recover, it is duty of court to direct a verdict.

Civil action to recover damages for personal injuries sustained by plaintiff when she fell on one of the public streets in the City of Monroe, due to a depression or hole in the walk way crossing the street.

The record discloses that after dark on the evening of January 22, 1937, the plaintiff and two companions, who lived in Monroe, walked several blocks to the home of a friend where a death had occurred, and on their return between 9:30 and 10 o'clock, while traversing the same way they had gone earlier in the evening, the plaintiff fell on the hard-surfaced walk way crossing Windsor Street, and was severely injured.She stepped in a hole or bowl-shaped depression 11 inches wide and 13 inches long and from 1 1/4 to 2 1/2 inches deep at its lowest point.There is a white line indicating the existence of the walk way across the street.The crosswalk was at least 7 feet wide.

One of plaintiff's companions testified: "The place where Miss Ella stepped was the shape of a tin pan exactly.I would say it was two inches deep at the deepest point, and it shallowed out towards the edge just like a bowl."

The other companion testified: "I observed nothing unusual about the condition of the streets or the lights.I pass that place almost daily myself and have been doing so for years.I don't remember whether she fell in a hole or not.I just remember that it was an outline of unevenness."

The condition in the crosswalk was described by other witnesses as (1)"just a dished out place.It was cracked on the outside and a little at the bottom."(2)"It wasn't a hole, just a sunken in place, more of a dip dropped down about an inch and a quarter as if a heavy truck had smashed it in, a concave depression, right by the side of the white line."

The street lights were burning, and there was a white-way light at the intersection.

Plaintiff testified: "The lights were poor and I was in the middle, and I think the shadow of their skirts would keep me from seeing the hole."

On cross-examination she said: "I have been passing this corner going up street all my life.I didn't notice anything unusual about the crossing when we crossed and were going up town.I suppose the same lights were burning when we came back.* * * Well, I don't know which way I was looking.I don't know if I was looking in the street where I was walking.Certainly I would have seen the hole if I had been looking.* * * I guess I said that if I had been looking where I was going, I could have seen the hole, if you say I did.Yes, I said I was not looking, and I was not; and I didn't know anything until I stepped in the hole."

The usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff.

From judgment on the verdict defendant appeals and assigns as error the refusal to nonsuit.

E Osborne Ayscue, of Monroe, for appellant.

Vann & Milliken, of Monroe, for appellee.

STACY Chief Justice.

The description of the place in the crosswalk where plaintiff fell, according to her own witnesses, ranges all the way from "an outline of unevenness" to a dip or depression, tin-pan or saucer shaped, 11 or 13 inches in diameter, 2 1/2 inches deep at the center, and it tapered out to nothing or "shallowed out towards the edge just like a bowl."Plaintiff was familiar with the intersection.She knew the condition of the crosswalk, and could have seen the situation had she been looking, but she was not looking where she was going.She and her companions had passed over the intersection only a short time before.The defendant alleges in its answer that "a reasonable and ordinary inspection of the street would not have revealed the existence of the depression."

In the circumstances thus disclosed by the record, we are constrained to hold that the demurrer to the evidence should have been sustained, if not upon the principal question of liability, then upon the ground of contributory negligence.Burns v. Charlotte,210 N.C. 48, 185 S.E. 443.SeeSmith v. Sink,211 N.C. 725, 192 S.E. 108.A city is not an insurer of the safety of its streets and crosswalks.Ferguson v. Asheville,213 N.C. 569, 197 S.E. 146;Oliver v. Raleigh,212 N.C. 465, 193 S.E. 853;Fitzgerald v. Concord,140 N.C. 110, 52 S.E. 309.

The principle upon which the case rests is stated in 13 R.C.L 398, 399, as follows: "The existence of a hole or depression, or a material inequality or unevenness, or a gap in a sidewalk or crosswalk may constitute such negligence on the part of a municipality as will render it liable to pedestrians for injuries caused thereby.* * * But a municipality cannot be expected to maintain the...