Love v. City Of Asheville, 89.

• Citation: 187 S.E. 562,210 N.C. 476
• Decision Date: 23 September 1936
• Docket Number: No. 89.,89.
• Parties: LOVE. v. CITY OF ASHEVILLE.
• Court: United States State Supreme Court of North Carolina

210 N.C. 476

187 S.E. 562

LOVE.

v.CITY OF ASHEVILLE.

No. 89.

Supreme Court of North Carolina.

Sept. 23, 1936.

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Action by Claude Love, administrator of the estate of Lloyd Kuhn, deceased, against the City of Asheville. From judgment dismissing the action, the plaintiff appeals.

Affirmed.

This was an action to recover damages for wrongful death of plaintiff's intestate alleged to have been caused by the negligence of the defendant in failing to provide proper guard rails on a bridge at a time when there was ice on the roadway.

There was evidence tending to show that the bridge was 30 feet wide and 800 feet long, with concrete panels or rails on either side; that about 12 feet of the barrier on the south side had been broken shortly before the injury and temporarily replaced by planks; that about 11 o'clock p. m., February 13, 1933, a car resembling that of deceased was driven on the bridge and was observed to skid, and a noise was heard as if it hit something, and that later the dead body of plaintiff's intestate was found beneath his overturned automobile under the bridge; that the woodwork in the panel or barrier was knocked down; that the weather was cold and there was some ice on the driveway. There was no eyewitness to what happened. It appeared that other cars passed over this bridge about this time, without skidding or other incident.

At the conclusion of plaintiff's evidence, the court sustained defendant's motion for judgment as of nonsuit, and from judgment dismissing the action the plaintiff appealed.

DuBose & Orr, of Asheville, for appellant.

A. Hall Johnston and Philip C. Cocke, Jr., both of Asheville, for appellee.

PER CURIAM.

We concur in the ruling of the court below that the evidence fails to make out a case of actionable negligence against the defendant. While it was the duty of the city to exercise ordinary care to maintain its streets and bridges in a condition reasonably safe for those having occasion to use them in a proper manner, it must be made to appear not only that there was a failure of such duty, but that the negligent breach thereof was the proximate cause of the injury complained of. Mark-ham v. Improvement Co., 201 N.C. 117, 121, 158 S.E. 852; Pickett v. R. R., 200 N.C. 750, 158 S.E. 398:

It was not incumbent upon the city to erect and maintain barriers proof against any degree of force, nor to keep its streets and highways entirely free from ice resulting from...