Jones v. City Of Greensboro

• Decision Date: 28 March 1899
• Citation: 32 S.E. 675,124 N.C. 310
• Court: North Carolina Supreme Court
• Parties: JONES. v. CITY OF GREENSBORO.

32 S.E. 675

(124 N.C. 310)

JONES.

v.CITY OF GREENSBORO.

Supreme Court of North Carolina.

March 28, 1899.

Municipal Corporations—Defects in Streets-Personal Injuries—Notice—Burden op Proof—Evidence— Instructions.

1. In an action to recover for injuries resulting from a defect in a city street, the burden is on plaintiff to show that the city had actual or implied notice of the defect.

2. In an action to recover for injuries resulting from a defect in a city street, the refusal of an instruction to find for defendant, if it had no actual or implied notice of the defect is error.

3. The limb which fell from a tree and struck a pedestrian was not shown to have been materially decayed, and there was no evidence that any one had ever discovered its condition, or that the city officials could, or with reasonable diligence should, have noticed the defect. Held, that the city was not liable.

Appeal from superior court, Guilford county; Robinson, Judge.

Action by Asa S. Jones against the city of Greensboro. Judgment for plaintiff, and defendant appeals. Reversed.

A. M. Scales, for appellant

J. A. Barringer, for appellee.

FAIRCLOTH, C. J. The defendant is a duly-organized municipal corporation, and derives its powers and duties from its charter and the general statutes. Code, c. 62. By Code, § 3803, it is required to keep the streets and the bridges in the town in proper repair, in the manner and to the extent it may deem best; by section 3802, as well as by the common law, it may abate or prevent nuisances of any kind; and by section 60 of its charter the board of aldermen shall macadamize and pave the streets and sidewalks, and protect the shade trees of the city; and an ordinance provides that the trees shall be trimmed only with the permission of, and under the direction of, the street committee. The plaintiff was walking on one of the sidewalks, when a limb fell from a tree standing on the edge of the sidewalk, and injured him. The limb fell from 15 to 25 feet, out of the top of the tree. It is not alleged that the limb was dead, but it seems to have been treated as a dead limb during the trial. There was no evidence to show whether the limb was decayed, or whether it fell of its own weight, or fell in a storm. There was no evidence that any citizen, or any one else, had ever noticed the limb before it fell. One of the plaintiff'switnesses testified that he never saw the dead limbs in this tree prior to the time plaintiff was injured, although he had frequently passed it.

The general duties, powers, and liabilities of municipal corporations, as to keeping their streets and sidewalks in good repair, have been recently fully stated by this court in Bunch v. Town of Edenton, 90 N. C. 431, in Russell v. Town of Monroe, 116 N. C. 720, 21 S. E. 550, and in Dillon v. City of Raleigh (at this term), 32 S. E. 548; and it seems unnecessary to repeat them again so soon. Quite a diversity of opinion on these questions has been written by different courts. They agree that the corporation is not an insurer against all defects; that the corporation, however, will be held to a strict performance of its duties, within limits that are reasonable and just. The health, safety, comfort, and convenience of the public require this much, and the corporation is vested with the power and means necessary to perform its duties. The liability grows out of the power conferred on the city over its streets, including sidewalks, and its duty to keep them in reasonable repair, having the power to raise means for that...