Walker v. Town Of Wilson, 92.

• Decision Date: 30 September 1942
• Docket Number: No. 92.,92.
• Citation: 222 N.C. 66,21 S.E.2d. 817
• Court: North Carolina Supreme Court
• Parties: WALKER. v. TOWN OF WILSON.

21 S.E.2d. 817

222 N.C. 66

WALKER.

v.TOWN OF WILSON.

No. 92.

Supreme Court of North Carolina.

Sept. 30, 1942.

Appeal from Superior Court, Wilson County; J. J. Burney, Judge.

Action by Mrs. Clarissa Walker against the Town of Wilson for injuries resulting from an alleged failure of defendant to keep in repair an unpaved space between its sidewalk and a retaining wall on the property line. From a judgment for plaintiff, defendant appeals.

Reversed.

Civil action to recover damages against the Town of Wilson, resulting from an alleged failure of said town to keep in proper repair a small unpaved space between its sidewalk and a retaining wall on the property line.

The evidence was to the effect that the sidewalk on Nash Street, in the Town of Wilson, is five feet wide and a retaining wall four or five feet high (complaint alleges the retaining wall is from ten inches to two feet in height) is flush with the sidewalk in front of the Harrell lot which adjoins the Williams lot. There was an unpaved space between the sidewalk and the retaining wall in front of the Williams lot, said space being approximately two feet in width. A drain pipe that takes the water off of the Harrell lot empties into the space between the sidewalk and the retaining wall, causing a depression in the unpaved area. The depression was from eighteen to twenty-four inches wide and six or seven inches deep at "the deepest portion and then edges off to three inches."

Plaintiff testified: "In going down town I use the right side of Nash Street mostly, and the right side going back home. The Lattimore Williams lot is on the right side of Nash Street going out. On the night of October 29, 1941, about 7 o'clock, I was going out home. I had been uptown in the afternoon and had visited friends after the stores closed and about 7 o'clock I started out home, 7 o'clock old time or standard time. It is dark at that time in October. I was walking on the right side of Nash Street going out. As usual I walked to the right of the pavement, naturally I was walking close to the right side of the pavement and when I got along about in front of Mr. Lattimore Williams' side as I passed the wall that is out to the pavement I was still keeping to the right and my right foot stepped off of the pavement and I fell backward and pitched on this right hand and, of course, my weight caused it to break. I naturally grabbed for the wall and I missed it and knocked the knuckles off of my right hand as I came down the side of the wall. No one was there. I was alone. * * * When I was going home on this occasion I was using the sidewalk and the side of the street I usually use. I have not passed along that sidewalk so very many times in the last ten years. I don't go up town frequently, don't go on an average of once a week by any means. I don't know that I go as often as twice a month, walking. I suppose I have passed by that same spot quite frequently in walking prior to this time. I think the pavement of the sidewalk is perfectly level and smooth and at that particular point the sidewalk is straight. There is a little curve on this side but at the point where I am complaining about the depression, the sidewalk is perfectly straight. I was not meeting anybody. I had the whole sidewalk to myself. Iwouldn't know the width of the sidewalk. I suppose it is five feet wide. I could, of course, see down the street to the next intersection. Nothing-in front of me to obstruct my vision. The street light on the corner was burning and the street light back of me...