Ovens v. City of Charlotte

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J.
• Citation: Ovens v. City of Charlotte, 159 N.C. 332, 74 S.E. 748 (N.C. 1912)
• Decision Date: 01 May 1912
• Parties: OVENS v. CITY OF CHARLOTTE.

74 S.E. 748

159 N.C. 332

OVENS v. CITY OF CHARLOTTE.

Supreme Court of North Carolina

May 1, 1912

Appeal from Superior Court, Mecklenburg County; Lyon, Judge.

Action by David Ovens against the City of Charlotte. Judgment for defendant, and plaintiff appeals. Affirmed.

Where plaintiff knew that there was a stump on the edge of a driveway 68 feet wide, and drove into it, on unnecessarily deviating from the middle of the street, he was guilty of contributory negligence, and could not recover for injuries received by being thrown out of his buggy.

W. F Harding and McCall & Smith, for appellant.

Maxwell & Keerans, for appellee.

WALKER J.

Plaintiff brought this action to recover damages for injuries received while driving along a street or avenue in the city of Charlotte, known as Ransom place, and striking a stump, which overturned his buggy and threw him to the ground. He alleges that the city had cut down a tree which stood in one of the small parks or places in the avenue, leaving a stump which projected a little in the driveway, though plenty of space was left for the safe and convenient passage of vehicles. Ransom place was about 68 feet wide and 400 feet long, and extended from Morehead street to Vance street. The parks were not part of the driveway, but well defined in their boundaries, and were curbed. The evidence introduced by the plaintiff tended to show that he had often seen the stump, as he lived in Ransom place very near it, and "there was no trouble about seeing it." Plaintiff admitted that if he had been thinking of the stump he could easily have avoided it. He was not looking for the stump, and was driving along and not thinking about it, although he knew that it was there. He was not looking out for anything ahead of him, but thinking of something else. If he had driven in or near the middle of the street, and not to the extreme right side, he would not have struck the stump. There was an electric light burning at the intersection of Ransom place and Vance street about 200 feet distant. It would seem clear that plaintiff's injuries were caused by his negligent indifference to his own safety. He was evidently driving carelessly, if not recklessly, and not thinking about what he was then doing.

Walker v. Town of Reidsville, 96 N.C. 382, 2 S.E 74, is a case which closely resembles this one in its facts and with reference thereto, the court said: "A reasonably prudent and careful man would not forget the presence of such danger in his immediate neighborhood--one that he had seen and observed every day for more than a fortnight, and but a few hours before he received the hurt. He was bound to act upon his information, and use ordinary care and prudence in shielding and protecting himself from what he knew to be a menacing danger to every one who passed near it. He forgot, and failed to be careful at his peril, and in his own wrong. Parker v. Railroad, 86 N.C. 221; Railroad v. Houston, 95 U.S. 697 [24 L.Ed. 542]; Dillon, Mun. Corp. § 789; Beach on Cont. Neg. 40. In Bruker v. Covington, 69 Ind. 33 [35 Am. Rep. 202], it was held that, when a party knows of the existence of an open cellarway in a sidewalk, and attempts to pass the place in the night, he will be considered as taking the risk upon himself, even if he...