Seagraves v. City of Winston

• Decision Date: 05 November 1914
• Docket Number: 328.
• Citation: 83 S.E. 251,167 N.C. 206
• Parties: SEAGRAVES v. CITY OF WINSTON.
• Court: North Carolina Supreme Court

83 S.E. 251

167 N.C. 206

SEAGRAVES v. CITY OF WINSTON.

No. 328.

Supreme Court of North Carolina

November 5, 1914

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

Action by Agnes Seagraves against the City of Winston. From a judgment for plaintiff, defendant appeals. New trial granted.

A demurrer to the evidence may be sustained, a nonsuit granted defendant, or a verdict may be directed in favor of either of the parties when the testimony is insufficient to support a different verdict.

Jones & Patterson, W. M. Hendren, and B. W. Stras, all of Winston-Salem, for appellant.

Louis M. Swink and Alexander, Parrish & Korner, all of Winston-Salem, for appellee.

CLARK C.J.

This is an action against the defendant for damages sustained by reason of the defendant's alleged negligence in allowing a ditch or excavation on East Fourth street to remain unlighted and unguarded at night, in consequence of which the plaintiff alleges she fell in and sustained serious injuries. There was an excavation on the lot of William Black, and the city had issued a permit to a plumbing company to make sewer connections from said lot across the street and sidewalk to the city's sewer main. This ditch was 2 1/2 to 3 feet deep. On December 22d the pipe was laid in this ditch, making connection with the sewer main. The evidence was that the pipe had been laid to a point beyond the sidewalk line over on the lot of Black, the work finished, the earth securely packed and tamped, and the brick replaced in the sidewalk on said December 22d. The evidence also was that, if any hole or defect existed in the sidewalk, it developed after 6 p. m. on December 31st, and less than an hour before the plaintiff fell in; that the street was well lighted, there being an incandescent light 100 feet from the spot where the injury was alleged to have been sustained and an arc light of high power about 250 feet from this point; and that there was nothing to deflect or obstruct the light; and the defendant contended that, if a defect actually existed in the walk, it should have been seen or discovered by the plaintiff.

The defendant excepted because the court in effect told the jury that if they should find by the weight of the evidence that parties acting under a permit from the city in making the sewer connection left a ditch or excavation in the sidewalk unguarded or unlighted, whereby the alleged injury was caused to the plaintiff, and that such or a similar result could have been foreseen by the exercise of...