Price v. City of Monroe, 600

• Decision Date: 12 December 1951
• Docket Number: No. 600,600
• Citation: 68 S.E.2d 283,234 N.C. 666
• Court: North Carolina Supreme Court
• Parties: PRICE, v. CITY OF MONROE (three cases).

Page 283

68 S.E.2d 283

234 N.C. 666

PRICE, v. CITY OF MONROE (three cases).

No. 600

Supreme Court of North Carolina.

Dec. 12, 1951

Coble Funderburk, Monroe, for plaintiffs, appellees.

O. L. Richardson and E. Osborne Ayscue, Monroe, for defendant, appellant.

DEVIN, Chief Justice.

Buford F. Price Case.

This plaintiff was the owner and driver of the automobile involved. On the evening of October 12, 1949, about 9:30 p. m., with his wife and daughter as passengers in the automobile, he drove from the mill where he was employed northwardly along Mill Street in the City of Monroe, and then turned west into Avon Street, a paved street in general use by the public. Across Avon Street 130 feet from Mill Street, the City had dug a ditch for the purpose of installing a new culvert. This work had been in progress several weeks. The ditch was 6 feet wide and 8 feet deep, and extended the entire width of Avon Street. The loose dirt from the excavation had been piled up along the eastern edge of the ditch to form a ridge or bank of earth 1 1/2 to 2 feet high according to plaintiff, or 5 feet high according to the city engineer, and spreading out at the base.

Plaintiff testified there were no barriers or lights on this obstruction; that he was traveling along Avon Street at the rate of 15 miles per hour; that his automobile lights revealed this ridge of dirt but he thought it was dirt used in repairing pavement; that he did not know there was a ditch beyond the ridge and continued to drive without applying his brakes, though he did remove his foot from the accelerator. He said: 'I ran straight in the ditch. ' His front bumper caught on the edge of the pavement on the west side of the ditch, with front wheels in the ditch, while the rear wheels were on top of the ridge of dirt. The automobile and each of the occupants sustained injury. Considering the plaintiff's evidence in the light most favorable for him, it is apparent the City was negligent in permitting an open excavation which it had made across a city street to remain without barriers or lights. Russell v. Monroe, 116 N.C. 720, 21 S.E. 550; Seagraves v. Winston, 170 N.C. 618, 87 S.E. 507; Willis v. New Bern, 191 N.C. 507, 132 S.E. 286; Michaux v. Rocky Mount, 193 N. C. 550, 137 S.E. 663; Hunt v. High Point, 226 N.C. 74, 36 S.E.2d 694. But we think the injuries sustained by plaintiff Buford F. Price are attributable to his own contributory negligence, and that in his case the defendant City was entitled to have its motion for nonsuit sustained.

The conclusion seems inescapable that this observed obstruction in the form of a ridge or bank of recently excavated earth extending entirely across the street over which he was driving should have warned him of danger to his progress, and that if he had exercised reasonable care for his own safety and a proper lookout in the direction in which he was moving, he would and should have become aware of so extensive an excavation in the street in time to have avoided the injurious result now complained of. Blake v. Concord, 233 N.C. 480, 64 S.E.2d 408. While compulsory nonsuit on the ground of contributory negligence may be rendered only when no other conclusion reasonably can be drawn from the plaintiff's evidence, Carruthers v. Southern R. R. Co., 232 N.C. 183, 59 S.E.2d 782; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921, we think his own testimony establishes such want of care on his part as should bar his recovery for the causes alleged. Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227. Nonsuit should have been entered on defendant's motion, and the judgment in favor of plaintiff Buford F. Price is reversed.

Cases of Elizabeth K. and Phyllis Price.

These cases stand upon a different footing from that of Buford F. Price. These plaintiffs were mere passengers in the automobile of which he was the owner and driver. Neither of them owned the automobile or controlled or had right of control over its movement. Under the facts presented they may not be held responsible for the negligence of the driver. Crampton v. Ivie, 126 N.C. 894, 36 S.E.351; Hunt v. North Carolina R. R. Co., 170 N.C. 442, 87 S.E. 210; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845.

Nor do we think the evidence supports the defendant's contention that these cases should have been nonsuited on the ground that the negligence of the driver was the sole proximate cause of the injuries sustained, or that his negligence insulated and rendered harmless the negligence of the City. Harton v. Forest City Tel. Co., 141 N.C. 455, 54 S.E. 299; Hinnant v. Atlantic Coast Line R. R. Co., 202 N.C. 489, 163 S.E. 555; Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573. The damage to vehicles traveling on this public street, due to so extensive an excavation...