Shelden v. City Of Asheville

• Decision Date: 20 October 1896
• Citation: Shelden v. City Of Asheville, 25 S.E. 781, 119 N.C. 606 (N.C. 1896)
• Parties: SHELDEN. v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

25 S.E. 781

119 N.C. 606

SHELDEN.

v.CITY OF ASHEVILLE.

Supreme Court of North Carolina.

Oct. 20, 1896.

Municipal Corporations — Action for Negligence—Instructions—Demand.

1. in an action against a city to recover for a personal injury alleged to have been received by reason of the defective condition of a sidewalk, where there is no material conflict in the evidence as to the" condition of the walk, it is proper to instruct as to what legal conclusions will follow if the testimony of the witnesses is believed.

2.Code, § 757, providing that no action shall be maintained against any city, county, or town on any debt or demand unless the claimant shall have made a demand on the proper municipal authorities, applies only to actions arising out of contrasts.

Appeal from superior court, Buncombe county; Graham, Judge.

Action by Janet R. Shelden against the city of Asheville to recover for personal injuriesalleged to have been received by plaintiff by reason of a defective sidewalk.Judgment for plaintiff, and defendant appeals.Affirmed.

Davidson & Jones and J. C. Martin, for appellant.

Moore & Moore, for appellee.

AVERY, J.The plaintiff testified that she had already passed over a portion of the plank sidewalk that was obviously bad, and over a portion of the street where it was entirely gone, when at a point directly in front of West's front door, where the sidewalk, "as far as she could see, " was good, a strip gave way, and let her foot between the boards, so as to throw her down. in this fall she received the injury complained of.The court charged the jury that, if the sidewalk was in the condition testified to by the witnesses, and was allowed to remain so for any considerable length of time, which would raise a presumption of notice on the part of the city, or, if the authorities had actual notice of its state, the first issue (involving the question whether the injury was caused by the defendant's negligence) should be answered in the affirmative.This instruction was excepted to as a misdirection.The plaintiff had also testified that the plank which gave way and caused her fall was in the proper place, and apparently nailed down.The defendant contended that the testimony of one Henderson, a witness for the city, was in conflict with that of the plaintiff as to the condition of the sidewalk in front of West's house, and that the jury were, therefore, misdirected, in that it was their province to pass upon the conflicting evidence under proper instruction. it is conceded to be the general rule that the judge is not at liberty to single out a particular witness, and predicate his charge to the jury upon the theory that the testimony of that witness is to be taken as true, when it is in conflict with that of another witness.Did the witness Henderson contradict the plaintiff as to that particular question?After stating that in some places, not far from West's gate, the plank sidewalk was entirely gone, and in other places its condition was bad, Henderson testified in response to one question that the sidewalk "right in front of Mr. West's house" was "in pretty fair condition, " and in answer to other questions that he"did not see any defective stringer or planks there, " and that "the stringers were good, and the planks seemed good."The gravamen of the plaintiff's complaint was that the plank "seemed" safe, when in fact it was in such bad condition that it would not sustain her weight.The defendant seems, from the questions asked, to have embarked upon the examination of...