Jackson v. The Comm'rs of Greene Cnty.

• Decision Date: 31 January 1877
• Citation: 76 N.C. 282
• Court: North Carolina Supreme Court
• Parties: ALICE S. JACKSON v. THE COMMISSIONERS OF GREENE COUNTY.

76 N.C. 282

ALICE S. JACKSON

v.THE COMMISSIONERS OF GREENE COUNTY.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION for Damages, tried at Spring Term, 1876, of WILSON Superior Court, before Kerr, J.

The action was brought to the Superior Court of Greene and removed to Wilson. The plaintiff claimed damages of the defendants for injuries received in consequence of their failure to construct and keep in repair a public bridge across Nahunta Creek in Greene County.

The material facts are, that plaintiff and Miss R., her friend, on the 21st of September, 1874, were travelling a public road leading from Lenoir to Wilson County. Upon arriving at said creek they found the bridge down and undergoing repairs. They then turned back, and leaving the main road, followed a path which led to the creek about two hundred yards below the bridge. In attempting to cross the creek they went down the stream about fifty yards when they saw an opening in the trees on the opposite bank, and got into water deep enough to float them from their seat. Miss R. got on top of the buggy in which they were riding, and the plaintiff stood on a trunk behind the buggy, the water being above the waist of plaintiff, in which condition they remained for some time and until rescued by persons living in the vicinity. Their horse was drowned. The creek was swollen and the current rapid, in consequence of heavy rains.

There was much evidence--notably that of one Rawls--relating to the contract for repairing said bridge, the length of time in which the work was in progress, the breaking of parts of the machinery at the mill where lumber was prepared, the necessity of hauling said lumber a considerable distance, and the delay which was thereby unavoidably occasioned.

His Honor charged the jury that defendants were entitled to a reasonable time to repair the bridge, and if they believed the testimony of the witness Rawls, defendants were not liable. If however considering the whole evidence, they believed the bridge was out of order for four or five weeks, the defendants were liable; and further, assuming such liability, if plaintiff left the public highway and went to the creek when it was so swollen and in such condition as to put persons of ordinary prudence on their guard, and attempted to cross and was thereby injured, she was guilty of contributory negligence and would not be entitled to a verdict??

Under these instructions the jury rendered a verdict in favor of defendants. Judgment. Appeal by plaintiff.

Messrs. Smith & Strong, for plaintiff .

Mr. H. F. Grainger, for defendants .

READE, J.

His Honor in singling out the testimony of the witness Rawls when there were several others testifying to the same matters, and charging the jury that if they believed his evidence, then there was no negligence on the part of the defendant, put himself in conflict with Anderson v. C. F. Steamboat Co. 64 N. C. 399, and Willey v. Gatling, 70 N. C. 410. And if the case...