Russell v. Town of Monroe

• Decision Date: 23 April 1895
• Citation: Russell v. Town of Monroe, 116 N.C. 720, 21 S.E. 550 (N.C. 1895)
• Parties: RUSSELL v. TOWN OF MONROE.
• Court: North Carolina Supreme Court

21 S.E. 550

116 N.C. 720

RUSSELL v. TOWN OF MONROE.

Supreme Court of North Carolina

April 23, 1895

Appeal from superior court, Union county; Winston, Judge.

Action by Samantha Russell against the town of Monroe for personal injuries.From a judgment for defendant, plaintiff appeals.Reversed.

In an action against a city for personal injuries caused by defects in a sidewalk, the burden of proving contributory negligence is on defendant.

MacRae & Day, for appellant.

F. I Osborne and Battle & Mordecai, for appellee.

AVERY J.

The law imposes upon the mayor and commissioners of incorporated towns the imperative duty of "keeping in proper repair the streets and bridges of the town"(Code§ 3803), and for a failure to fulfill its requirements they may subject themselves to criminal liability (State v. Commissioners of Halifax, 4 Dev. 345).The testimony fully warranted the jury in finding that the governing authorities of the town were negligent in leaving open a ditch three feet deep at the point where it crossed a part of the sidewalk, for sufficient space (two and a half by four feet) to admit the body of a person walking along such footway.Bunch v Edenton,90 N.C. 131.But the defendant did not appeal and the response to the first issue, therefore, stands unchallenged.It has been held in many of the leading courts of this country that the previous knowledge of the injured person of the existence of defect in a sidewalk does not, per se, establish negligence on his part.Morrill, CityNeg. p. 139, and authorities cited;Diveny v. City of Elmira,51 N.Y. 512;Darling v. Mayor, etc.,18 Hun, 340;Diwire v. Basley,131 Mass. 169;Gilbert v. City of Boston,139 Mass. 313, 31 N.E. 734.

If the plaintiff was exercising reasonable or ordinary care for her own safety when she fell into the ditch, she had a right to demand that the jury respond in the negative to the second issue.Jones, Neg. Mun. Corp. § 221;Bunch v. Edenton, supra.The evidence is that the plaintiff had never actually noticed "the hole before," though she admits that she might possibly have seen it if she had been paying strict attention to her pathway when she fell.She had a right to expect and to act on the assumption that the authorities of the town had properly discharged their duty by keeping the streets in good repair.Bunch v. Edenton,90 N. C., at page 435;Morrill v. City Neg.pp. 136 138;City of Indianapolis v. Gaston,58 Ind. 224.Perhaps the only exception to this rule is the reasonable requirement that persons must take notice of such structures as the necessities of commerce or the convenient occupation of dwelling houses render necessary, such as exterior basement stairs.Bueschung v. Gaslight Co., 6 Mo. App. 85.The case of Walker v. Town of Reidsville,96 N.C. 382, 2 S.E. 74, is distinguishable from that at bar, because there the pit into which the plaintiff fell was some distance from the sidewalk (56 feet), though it was excavated by the town and upon property owned by it, and the plaintiff had actual notice of its existence.The burden was on the defendant, under our statute, to prove contributory negligence, and, in order to thus avoid the consequences of its own carelessness, it was necessary to show that the plaintiff failed to exercise reasonable or ordinary care for her own safety.If she did not put herself in fault by careless conduct, she had a right to demand that the jury be instructed to answer the second issue in the negative.Jones, supra, § 221.To constitute contributory negligence (says Beach in his work on that subject, section 8), there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury.Perhaps, besides these two, there are no other necessary elements.Certainly they are the two points of difficulty in the question."Did the plaintiff exercise ordinary care under the circumstances?Was there a proximate connection between his act or omission and the hurt he complains of?"We can conceive of no reason and we know no authority for holding the plaintiff to a higher degree of care than that involved in what is known as the rule of the prudent man.What is reasonable care is to be determined in some, probably most of, jurisdictions, largely by the jury, but with us, when the facts are undisputed, by the court.It is the universal rule, however, that there is no contributory negligence, where the plaintiff acts with ordinary prudence, in view of surrounding circumstances suggestive of danger.Morrill, supra, pp. 132, 140;Mason v. Railroad Co.,111 N.C. 482, 16 S.E. 698;Emry v. Railroad Co.,109 N.C. 589, 14 S.E. 352;McAdoo v. Railroad Co.,105 N.C. 742, 11 S.E. 316.

As a specific act or omission may be declared negligence at a particular period of under given circumstances, which had been held, with other surroundings, not culpable at...