Seagraves v. City Of Winston

• Decision Date: 12 January 1916
• Docket Number: (No. 344.)
• Court: North Carolina Supreme Court
• Parties: SEAGRAVES. v. CITY OF WINSTON et al.

87 S.E. 507

170 N.C. 618

SEAGRAVES.

v.CITY OF WINSTON et al.

(No. 344.)

Supreme Court of North Carolina.

Jan. 12, 1916.

Appeal from Superior Court, Forsyth County; Devin, Judge.

Action by Agnes Seagraves against the City of Winston and the Crawford Plumbing & Mill Supply Company. Judgment for plaintiff against both defendants, and they except and appeal. No error.

See, also, 167 N. C. 206, 83 S. E. 251.

There was evidence on part of plaintiff tending to show that, on December 31, 1912, about 6:30 to 7 o'clock p. m., as she was returning to her home along East Fourth street of the city of Winston, between Hickory and Maple streets and in the vicinity of Lloyd's store, she fell into an excavation or hole in the sidewalk of said street, same being un-lighted or in any way safeguarded, and received serious and painful injuries and, further, that the excavation or hole had been made by the Crawford Plumbing Company, engaged at the time in connecting the house of Mr. W. H. Black with the sewerage system of the city, and that this was being done under regular permit issued by the city authorities, vested by law with supervision arid control of such matters. There was denial of liability by defendants, and it was claimed by the city that, if any excavation existed in that locality, the city had neither actual nor constructive notice of same, and were in no way chargeable with negligence concerning it. The action was originally instituted against the city alone. Plaintiff recovered a judgment, and on appeal a new trial was granted, the court holding that, on the record as it then appeared, the case had been submitted to the jury under an aspect of liability that there was no evidence to support. See case, 167 N. C. 206, 83 S. E. 251. This opinion having been certified down, the Crawford, etc., Plumbing Company, the contractor doing the work, was made codefendant, another trial was had, and, on the usual issues in such cases, of negligence, contributory negligence, and damages, there was verdict against both defendants. Judgment on the verdict, and defendants excepted and appealed.

Manly, Hendren & Womble, of Winston-Salem, for appellant City of Winston-Salem.

Jones & Patterson, of Winston-Salem, for appellant Plumbing & Supply Co.

Louis M. Swink and Fred M. Parrish, both of WinstonSalem, for appellee.

HOKE, J. (after stating the facts as above). [1] On the record as now constituted, there are facts in evidence tending to show that the defect complained of and causing the injury was an excavation across the sidewalk, 2 to 2 1/2 feet in depth, made and so left when the work was being done under permit of the city authorities, and under circumstances requiring the city to see that it was properly protected. If these facts are accepted by the jury, it was a clear breach of duty on the part of the city in failing to have the place properly lighted or in some way safeguarded and the motion to nonsuit, the position chiefly urged for error on the part of the city, appellant, cannot be sustained. Carrick v. Power Co., 157 N. C. 378-380, 72 S. E. 1065; Bailey v. Winston, 157 N. C. 252, 72 S. E. 966; Kinsey v. Kinston, 145 N. C. 106, 58 S. E. 912. In Kinsey v. Kinston, a case very similar to that presented in this aspect of the evidence, it was held:

"It is the positive duty of municipal authorities to keep the public streets in a reasonably safe condition for the use of pedestrians. The city is liable in damages to the plaintiff, who, being accustomed to use its sidewalk in going to and from her work, passed in the morning, and, repassing in the evening about 8 o'clock, was injured by falling into a ditch which had been dug across the sidewalk in the intervening time by a contractor for a private person, with notice to and permission of the city, and left without lights, warning signals, or signs at, near, or upon the ditch."

And in Carrick's Case, the general principle applicable is stated as follows:

"The governing authorities of a town may not absolve themselves of the duty of proper care and supervision as to the condition of its streets and sidewalks, and when they authorize work to be done on them which is essentially dangerous, or which will create a nuisance unless special care and precaution is taken, they are chargeable with a breach of duty in this...