Presley v. C. M. Allen & Co.

• Decision Date: 26 September 1951
• Docket Number: No. 24,24
• Citation: 66 S.E.2d 789,234 N.C. 181
• Court: North Carolina Supreme Court
• Parties: PRESLEY, v. C. M. ALLEN & CO., Inc.

Page 789

66 S.E.2d 789

234 N.C. 181

PRESLEY, v. C. M. ALLEN & CO., Inc.

No. 24

Supreme Court of North Carolina.

Sept. 26, 1951

R. E. Sentelle, W. R. Francis, Waynesville, and Geo. M. Pritchard, Asheville, for plaintiff, appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant, appellee.

JOHNSON, Justice.

The plaintiff offered evidence tending to show that on and prior to 14 July, 1948, the defendant contractor was and had been engaged in excavating a ditch for the purpose of laying underground cables for the telephone company along Main Street at and near the junction of Adams Street in the Town of Canton, where traffic was heavy. The excavation extended from near the intersection of Main and Adam Streets westerly inside and along the paved portion of Main Street down to a point in Water Street an overall distance of 'two or three hundred feet.' The project had been underway about two weeks. 'They would excavate a distance,' put in a section of the conduit, * * * 'and close that up and go to another section. ' While the work was in progress the north side of Main Street between the excavation and the curb was left open to vehicular traffic. The ditch was about two feet wide and from three to five feet deep. It ran parallel to and about four feet inside from the south curb. The width of Main Street there is from 40 to 50 feet. Hence, there was left open for traffic on the north side of the ditch some 30 to 35 feet of the street. At the time of the mishap a section of the ditch from 50 to 100 feet long was open on Main Street immediately west of the Adams Street intersection.

The dirt and clay from the ditch had been thrown out on both sides, mainly on the north or traveled side, forming on that side an embankment from 18 to 24 inches high next to the ditch.

The evidence was conflicting as to the number and location of warning signs and barriers along and near the excavation. According to plaintiff's evidence (which controls the appeal), there were no guard rails between the ditch and the traveled portion of the street. The plaintiff testified, however, that 'there was a horse (a type of barrier) at the upper end, * * * (with) a sign hanging on it that said 'Men Working'. That was probably 100 feet up the street. ' He and his witnesses also said like 'horses' were stationed at other places near and at each end of the ditch.

Clay was 'scattered on the right (north) side of the street coming west. ' As one of plaintiff's witnesses put it, 'It wasn't too deep over in the street, it just got knocked over there and there was enough to make the street disagreeable for traffic, * * * the clay was all wet and slippery that day. It had been raining all day' but had just slackened. There was evidence that the surface of the street sloped slightly toward the west and also in the direction of the ditch.

The plaintiff related the details of the occurrences in substance as follows: That on the afternoon in question, at about 3:30 o'clock, he drove his pick-up truck up to the intersection of Main and Adams Streets. A station wagon in front of him went on through, but he was caught by the traffic light turning red. Immediately in front of plaintiff and beyond the intersection, a long work bus was parked on his right at an angle. The rear of this bus projected back from the sidewalk so that when plaintiff stopped on the red light the bus was so parked that he 'couldn't see around it.' A policeman standing on the northeast corner of the intersection motioned plaintiff around the bus. When he got around the bus, he said 'I could (then) see * * * (the) station wagon there. * * * It was double-parked, and there was not room to get between (it) and the ditch, * * * and I saw I was going to hit the station wagon, so I applied my brakes and skidded into the ditch and the last thing I remember my chest hit the steering wheel. ' The distance between the parked station wagon and the ditch was 'probably 4 or 5 feet, * * not room for me to go through. ' He said he 'skidded a little forward and sidewise' into the ditch, 'approximately 4 feet.' Only the left front wheel went in the ditch. At that point his pick-up was about 10 feet behind the double-parked station wagon. The distance traveled by the plaintiff from the intersection to where he came to rest in the ditch varied according to plaintiff's evidence from 10 to 20 feet, and he said he was driving 7 or 8 miles an hour. He said the policeman 'motioned me through pretty fast and I stepped on it and went on. ' There was no evidence tending to show signs of skid marks made by plaintiff's pick-up near where it went in the ditch.

The plaintiff insists that his evidence was sufficient to take the case to the jury. He places chief emphasis on the evidence which tends to support his allegations that the defendant was negligent in (1) failing to provide adequate signs, barriers, and guard rails for the protection of the traveling public; and (2) 'throwing loose clay from the ditch onto the pavement, * * * and in permitting the wet clay to be scattered and strewn over the pavement where the public was traveling.'

1. The alleged failure to provide adequate signs, barriers, and guard rails. On this record it may be assumed that in placing the telephone wires and cables underground the defendant contractor was performing a lawful undertaking for the telephone company and that the ditch was being excavated along Main Street with the sanction and permission of the governing board of the Town. G.S. § 160-222.

The question then arises as to what duty the defendant owed the public in respect to keeping safe the traveled portion of the street while the construction work was in progress.

It seems to be conceded, and rightly so, that the defendant, being in charge of the excavation project, was under substantially the same legal duty to the traveling public as would the Town if it had been in direct charge of making the excavation for some purpose of its own. Kinsey v. City of Kinston, 145 N.C. 106, 58 S.E. 912. See also McQuillin, Municipal Corporations, 3d. Ed., Vol. 19, Sec. 54.42, pp. 148 to 150.

The defendant was not an insurer of the safety of travelers upon the street. Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571. And that is so notwithstanding the fact that in making the excavation inside of the traveled portion of the street the defendant may have created a dangerous condition therein. Assuming, as we may, that the excavation was made under permission duly granted by the municipality, the defendant contractor was under the duty to exercise ordinary care, i. e., care commensurate with the surrounding dangers and circumstances, to warn travelers of the existence of the excavation, and otherwise to protect them against injury therefrom. Evans v. Shea Bros. Construction Co., 194 N.C. 31, 138 S.E. 411; Ramsbottom v. Atlantic Coast Line Railroad Co., 138 N.C. 38, 50 S.E. 448; 25 Am.Jur., Highways, Sec. 400, pp. 697 and 698. See also Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Anno.: 119 A.L.R. 841.

Also, where, as here, a work project or repair job is underway and a portion of the street is left open to traffic, the usual rule that a traveler may assume a public street to be in safe condition has no application. Beaver v. Town of China Grove, 222 N.C. 234, 22 S.E.2d 434. The public is not invited to use the open portion as in all respects entirely safe, as under ordinary conditions. The invitation has its limitations and includes warnings of danger based on physical facts apparent to the traveler. Phelan v. Granite Bituminous Paving Co., 227 Mo. 666, 127 S.W. 318; 25 Am.Jur., Highways, Sec. 400, p 698. Therefore, a contractor lawfully in charge of an excavation project in a street, as in the instant case, fulfils his obligation to those who use the adjacent traveled portion of the street when in the exercise of ordinary care he takes reasonable precautions to notify the public that work of such character is in progress and to guard against injuries arising therefrom. Phelan v. Granite Bituminous Paving Co., supra; 25 Am.Jur., Highways, Sec. 400, p. 698.

Thus it would seem that ordinarily the law imposes no special requirement that barriers or guard rails of any particular kind be erected as the means of giving protection and warning against dangers incident to a temporary street excavation, on pain of liability for...