Neal v. Marion

• Decision Date: 24 April 1900
• Citation: 35 S.E. 812,126 N.C. 412
• Court: North Carolina Supreme Court
• Parties: NEAL v. TOWN OP MARION.

35 S.E. 812

126 N.C. 412

NEAL

v.TOWN OP MARION.

Supreme Court of North Carolina.

April 24, 1900.

MUNICIPAL, CORPORATIONS—TORTS—DEMAND— DEFECTIVE SIDEWALK — PLAINTIFF'S KNOWLEDGE—CONTRIBUTORY NEGLIGENCE.

1. Code, § 757, providing that claims against municipal corporations must be presented, and payment refused, before action can be brought, and that the complaint, unless verified, and alleging such presentation and refusal, shall be dismissed, applies only to actions ex contractu, and an allegation of presentation was not necessary in a complaint against a town for injuries sustained through a defective sidewalk.

2. Where plaintiff was thoroughly familiar with a defective sidewalk, having traveled it hundreds of times, and at night, through for getfulness, walked into a hole therein, and sustained injuries, she was guilty of contributory negligence, and could not recover damages.

Douglas, J., dissenting.

Appeal from superior court, McDowell county; Shaw, Judge.

Action by Lizzie C. Neal against the town of Marion and another. Prom a Judgment in favor of plaintiff, defendant town appeals. Reversed.

Sinclair & Eaves, for appellant.

E. J. Justice, for appellee.

MONTGOMERY, J. The authorities of the town of Marion in 1881 commenced to use a part of the right of way of the Southern Railway Company as a street. It seems that the street was too narrow to permit of sidewalks on both sides thereof, and that up to 1889 a sidewalk was made and kept up on the north side of the street, when the sidewalk was changed to the south side of the street. The plaintiff, who was a resident of Marion, on her return to that place after an absence of a few months, on a train of the Southern Railway Company, upon going to her house, along this street, at 12 o'clock at night, took the old sidewalk or path on the north side of the street, instead of the well-kept walkway on the southern side, and fell into a hole in the path, whereby she sustained personal injury, and instituted this action against both the railroad company and the town of Marion for the recovery of damages therefor. She alleged that she had often walked along that path, and that when she left Marion in January it was in good condition. The defendants, in their answer, averred that "she [plaintiff] knew of her own personal knowledge that the north side of said thoroughfare was not constructed, or prepared, or intended to be used by foot passengers, and that the corporation of Marion had provided a sidewalk for foot passengers on the south side thereof, of easy access, and perfectly safe; and this defendant further alleges that the plaintiff had knowledge of the excavation, and voluntarily and carelessly, through inadvertence, or indifference to exercise due care, and negligently and for convenience, refused to go upon the sidewalk prepared for foot pas sengers, and took the chance of the dangerous path that led over the washout, and was injured, if at all, by her own contributory negligence." After the pleadings were read, the defendant town of Marion moved to dismiss the action on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it did not allege a demand upon the town under section 757 of the Code. There was no error in the refusal of his honor to sustain this motion. In Shields v. Town of Durham, 118 N. C. 450, 24 S. E. 794, 36 L. R. A. 293, this court unanimously decided that only actions arising ex contractu are contemplated under section 757 of the Code, and that that section does not apply to actions ex delicto. The opinion was written by Justice Furches for the court, and he discusses the question clearly and forcibly, and at some length, going into the reason of the matter. In that opinion the court said: "This motion has received our careful attention, and has given us some trouble. But, after a thorough consideration of the matter, we have come to the conclusion...