Revis v. City Of Raleigh

• Decision Date: 24 March 1909
• Citation: 150 N. C. 348,63 S.E. 1049
• Court: North Carolina Supreme Court
• Parties: REVIS . v. CITY OF RALEIGH.

63 S.E. 1049

150 N. C. 348

REVIS .

v.CITY OF RALEIGH.

Supreme Court of North Carolina.

March 24, 1909.

1. Trial (§ 252^*)—Submission of Issues.

The court should not submit an issue where there is no evidence to sustain a finding for the party who carries the burden of proving it.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 596; Dec. Dig. § 252.*]

2. Municipal Corporations (§ 796*)—Streets —Defects or Obstructions—Duty of City.

The duty of a city to keep its streets and sidewalks safe for public travel requires it to protect by proper barriers or covering all obstructions or dangerous holes or other perilous places.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1655; Dec. Dig. § 796.*]

3. Municipal Corporations (§ 788*)—Streets —Defects or Obstructions.

A city having notice of defects or dangers in its streets must remove them within a reasonable time, and failure to do so is negligence.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1641; Dec. Dig. § 788.*]

4. Municipal Corporations (§ 821*)—Streets

— Defects or Obstructions — Questions for Jury.

Whether a reasonable time has elapsed between the origin of dangerous conditions in a street and an injury to a traveler to have enabled the city to have remedied such conditions is for the jury.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1747, 1750; Dee. Dig. § 821.*]

5. Municipal Corporations (§ 821*)—Streets

— Defects or Obstructions — Failure to Inspect—Jury Questions.

In an action against a city for injuries to plaintiff through falling into an improperly covered hole in a sidewalk, it could not be said as a matter of law that defendant's failure to inspect the street for a week was negligence, since, though the inspection must be reasonably frequent, what is so depends on the conditions of each case and is a question for the jury.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1747; Dec. Dig. § 821.*]

6. Appeal and Error (§ 1064*) — Harmless Error—Instructions.

Where, in an action against a city for injuries to plaintiff through falling into an improperly covered hole in a sidewalk, the court instructed that the burden was on plaintiff to show that defendant knew, or by ordinary diligence might have discovered, the defect, and that the character thereof was such that injuries to pedestrians might have been anticipated, that the burden was also on plaintiff to show the dangerous condition, and that it had existed long enough before the accident for defendant to have known it, etc., a further instruction that, if defendant permitted the hole to remain for one week without inspection, it was liable, though erroneous, was not prejudicial to defendant; the evidence tending to show that thedefect had existed for a much longer time than one week.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. § 1064.^*]

7. Trial § 295*)—Instructions—Construction as a Whole.

Appellate courts will construe the entire charge of the trial court and deal with it as a whole, and will not seek reversible error in disconnected excerpts.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 703; Dec. Dig. § 295.*]

Appeal from Superior Court, Wake County; Neal, Judge.

Action by Richard Revis against the City of Raleigh. Judgment for plaintiff, and defendant appeals. No error.

The plaintiff sues to recover damages alleged to have resulted from injuries sustained by the negligence of defendant. He alleges: "That on or about the 6th day of September, 1907, and for a long time theretofore, the city of Raleigh negligently permitted a deep and dangerous hole or well to remain in and upon the sidewalk on the north side of Davie street, between Fayetteville and Wilmington streets, in said city, over and upon which many persons passed and repassed, and negligently permitted said hole or well to be insecurely covered with boards which had become decayed and insufficient to bear up a person of ordinary weight, and negligently allowed the said hole or well to be and remain so covered as to mislead persons passing along and over the said sidewalk as to the existence of the said hole or well beneath the said covering. That said city of Raleigh knew of the existence of said hole or well and said dangerous covering, or ought to have known of the same. That on or about the said 8th day of September, 1907, the plaintiff, Richard Revis, without any fault on his part, and not knowing of the existence of the said hole or well, in passing along and over said sidewalk, and being led to believe that the aforesaid covering, which concealed said hole or well, was boards lying on solid ground, stepped upon the said boards or covering, and was suddenly and with great force precipitated into the hole or well beneath and was painfully, seriously, and permanently injured." That by reason of the injuries he received, as alleged, he suffered great bodily harm, mental anguish, etc. Defendant denied the material allegations of the complaint, and alleged that plaintiff's injuries were caused by his own negligence. The court, at the conclusion of the evidence, declined to submit the issue in regard to contributory negligence.

There was evidence tending to show that, several months prior to the injury, a hole had been dug for the purpose of placing a telephone pole on the edge of the sidewalk, about the curbing, that it was covered over with a plank, top of a goods box, which had become rotten and insecure, that the grass had grown around the hole, and that on the 6th day of September, 1907, plaintiff drove up to the sidewalk and got out of his wagon for the purpose of going into a house. He thus describes the way in which he was injured: "I drove a little past the door on account of the rocks and brick lying there in front of the door, and I got out on the curbing from the wagon hub and put my foot on the paving rock and stepped out, * * * and, as I did so, I made not many steps, and the next thing I knew I was in the hole. Did not see any sign of the hole; did not have any idea of a hole being there; never knew there was a hole there. It looked to me as a solid piece of plank on the ground. It looked to me no more than a piece of plank laying on the ground, or something of the kind, and I did not see any difference. I stepped there just as quick as I would anywhere else, because I had no idea there was any hole there."

Geo. L. Lane, a witness for the plaintiff, testified: "The hole had been there four or five months. The grass had grown around it. A piece of old goods box had been placed over it. Very soft plank, and it had been there long enough for the grass to grow around it. * * * I called the attention of Mr. Pope, a policeman at the time (I do not know who he was in company with, whether it was Mr. Beasley or some other man), and he said to me: 'I will attend to that. I will see the committee on the streets, ' or something like that. At the time Mr. Lee, of Lee & Broughton, came by, and Mr. Pope pointed out the condition to him at the time." This witness said that he saw the board a short while after plaintiff was injured. There was other testimony tending to corroborate this witness. There was evidence in regard to the character and extent of the injuries sustained by plaintiff. Defendant introduced J. A. Pope, who denied the testimony of Lane in regard to notifying him of the hole and the condition of the plank over it. The court refused to submit an issue in regard to contributory negligence. Defendant excepted.

His honor, among other instructions in regard to the duty of defendant to keep its streets in safe condition and proper repair, said: "Proper repairs implies also all obstructions or dangerous pits or holes or other perilous places on the streets or sidewalks of the city should be protected by proper barriers or covering. That is a duty imposed upon every city and town in North Carolina by statute, and it is the law of the land. Now the court also charges you that if the jury shall find from the evidence that the defendant permitted an opening in the sidewalk insufficiently covered and protected, on one of its principal streets, upon which there is much travel, no matter for howlong a time the same has remained in said unsafe condition, or for such length of time as the city authorities should have known of its existence, or if for any length of time with the actual knowledge of the authorities of said city, the plaintiff stepped or fell into said opening and was injured thereby, the jury should answer the first issue, 'Yes.' The city does not warrant that the condition of its sidewalks shall be. at all times, absolutely safe. It is only responsible for negligent breach of duty, and to establish such responsibility is not sufficient to show that a defect or dangerous obstruction existed and an injury has been caused thereby. The burden is upon the plaintiff to satisfy the minds of the jury, by the greater weight of the evidence, that the proper officers of the city knew, or by ordinary diligence might have discovered, the defect or dangerous obstruction, and also that the character of the same was such that injuries to persons using the sidewalk in the exercise of ordinary care and watchfulness might reasonably be anticipated. If the jury shall find from the evidence that the city did not create or cause the opening in the sidewalk, nor authorize the same 'to be done, then the city would be liable, if at all, only for negligently permitting the same to exist in a dangerous condition on the public streets. It is not negligence per se for the city to allow a covered hole upon its sidewalk. It is for the jury to determine whether or not the character of the place was such that injuries to travelers thereon might reasonably be anticipated,...