Walker v. Town Of Eeidsville

• Decision Date: 18 April 1887
• Citation: 2 S.E. 74,96 N.C. 382
• Court: North Carolina Supreme Court
• Parties: Walker v. Town of Eeidsville.

2 S.E. 74

(96 N.C. 382)

Walker

v.Town of Eeidsville.

Supreme Court of North Carolina.

April 18, 1887.

Municipal Corporation—Defective Street—Contributory Negligence.

In an action to recover from a municipal corporation for leaving a deep and dangerous pit close to a street, into which plaintiff fell, and was injured, the evidence showed that he knew of the existence of the pit; that he had once before fallen into it; that there was no necessity for him to go near it; and that he fell into it while walking along at night, absorbed in thought, and not looking where he was going. Held, that the plaintiff was guilty of contributory negligence, and could not recover, although the town might have been guilty of negligence in leaving the pit unguarded by lights and railings.

Appeal from superior court, Rockingham county.

Mebane & Scott and Graham & Ruffin, for plaintiff.

J. T. Morehead, for defendant.

Merrimon, J. The defendant, a municipal corporation, caused to be excavated within its limits a deep and wide pit between West Market street and the east front of the town-hall and market-house, which pit was not completed on the twenty-fourth of October, 1884. The edge thereof next to the market-house was 15 feet from the front of this building. The edge of it, next to the street mentioned, was 56 feet from the sidewalk next to it of this street. The plaintiff, in the night of the day above, mentioned, fell into this pit, and sustained serious bodily injury; and this action is brought by him to recover damages on that account from the defendant, on the alleged ground that its officers and agents negligently failed to properly guard the pit mentioned, by lights, railings, and barriers, in the night-time, etc. The defendant alleged contributory negligence on the part of the plaintiff. At the trial, the plaintiff having introduced all his evidence, the court intimated the opinion that the plaintiff could not recover. Thereupon the plaintiff suffered a judgment of nonsuit, and appealed to this court.

Granting that the defendant was chargeable with negligence in that its officers and agents failed to properly guard the pit mentioned, by a proper railing, barriers, or otherwise, and that it would be answerable therefor in a proper case, we are of opinion that the plaintiff cannot recover in this action, because, accepting the evidence produced by him on the trial as true, in any proper view of it, he negligently and directly contributed to the injury because of which he complains. It appears that the pit was of considerablelength, width, and depth, and dangerous. There were barriers—indifferent ones—on the side of it next to the street, and at each end, but none on the side next to the market-house. Around it, and particularly in front of the market-house, was a public, common, open way, much used by persons going to and from the market-house and town-hall over it. All the evidence bearing upon this point went to prove that the plaintiff well knew of the pit, — where it was. He had seen the workmen at work on it for 10 days and more, and on the afternoon, just before he fell into it. There was ample room for him to pass out of the market-house without going near to the edge of the pit, and he did not pass out through the door he usually passed through in going to and from his business. He testified that, as he was going home to supper, he made his way through a crowd of persons in the aisle of the building to the front door on the east, facing West Market street; that he walked on, not thinking, but looking down, where he was going, fell into the pit, and broke both bones of his leg; that his mind was absorbed in respect to a trip he expected to make that night, and he forgot the pit. This is the substance of the material parts of the testimony.

Now it is clear that, if the party injured by the neglect of ordinary care and diligence of another carelessly and negligently fails to use reasonable care, prudence, and diligence to avoid or prevent the injury of which he complains, and the negligence of both parties be the direct cause of it, the party injured contributes to it, and he cannot recover damages on that account. In that case the party injured, in his own wrong, helped to bring the injury upon himself. In a just sense he injured himself. The parties were mutually...