Wall v. City of Asheville

• Decision Date: 26 February 1941
• Docket Number: 92.
• Citation: 13 S.E.2d 260,219 N.C. 163
• Parties: WALL v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

13 S.E.2d 260

219 N.C. 163

WALL v. CITY OF ASHEVILLE.

No. 92.

Supreme Court of North Carolina

February 26, 1941

This is an action for actionable negligence, brought by plaintiff against defendant for damage for the death of plaintiff's intestate. The plaintiff alleges in the complaint, in part:

"That on or about the 15th day of September, 1939, and at about 10:30 o'clock P.M., and during the night time, the plaintiff's intestate, who was a citizen and resident of the State of Florida, was transported to Asheville on a bus which said bus delivered plaintiff's intestate along with other passengers at the Asheville Union Bus Terminal located on Wall Street in the City of Asheville; that said plaintiff's intestate was a stranger to the City of Asheville and was not familiar with the location and general construction of said Wall Street or the sidewalk along the South side thereof, or the fact that there was a high stone wall along said street and that the adjacent ground on the South side thereof was approximately eighteen feet below the level of the sidewalk of said Wall Street.

"That after said plaintiff's intestate got off said bus at the Union Bus Terminal, she was attempting to walk to an automobile located some distance Westwardly on Wall Street from said Bus Terminal, to which automobile she was being conducted for the purpose of being transported to the home of friends in the City of Asheville, and that plaintiff's intestate walked along the Street portion of said Wall Street and for the reason that due to the negligent construction of said sidewalk it was not of sufficient width to permit two people to walk along the same side by side, and upon reaching the parked automobile which she intended to enter, said plaintiff's intestate was attempting to step onto the sidewalk of said Wall Street in order to enter said automobile; that as plaintiff's intestate attempted to step on to the sidewalk of said Wall Street, and because of the irregularity and variation in the height of said sidewalk and due to the rough, uneven and improper construction of the surface of said sidewalk, she was caused to lose her balance and fall to her knees across the width of said sidewalk, and because of the improper, negligent and careless manner in which said guard rail was constructed, and in the absence of any proper barrier, guard rail or other safety device to protect her, she fell headlong from the sidewalk some eighteen feet to the ground below, thereupon suffering severe and serious injuries which resulted in her death several hours afterward.

"The injury and death of plaintiff's intestate resulted directly and proximately from the wrongful actions and neglect of the defendant corporation in the construction and maintenance of the sidewalk and guard rail as hereinbefore described, and in its failure to repair and maintain a reasonably safe walkway and guard rail adjacent thereto, all of which negligent acts of the corporate defendant were in violation of its positive duty to maintain said sidewalk and guard rail in a reasonably safe condition for pedestrian traffic under the circumstances there existing.

"That the wrongful and negligent acts of the defendant which directly and proximately caused the injury and death of plaintiff's intestate are particularly set forth as follows:

"(a) In negligently constructing and maintaining a sidewalk or walkway along the South margin of Wall Street on top of a stone wall and of only three feet in width and without leaving adequate and sufficient walking surface whereby pedestrians could traverse the same in reasonable safety.

"(b) In constructing and maintaining the surface of said three foot sidewalk in a defective, rough and uneven condition thereby rendering the said walkway highly dangerous for any pedestrian using the same.

"(c) In negligently constructing, maintaining and failing to keep in repair the surface of said three foot walkway, whereby the height of the said sidewalk from the street level was irregular, defective, sloping and otherwise unsafe for pedestrian traffic to use the same.

"(d) In negligently constructing and maintaining a guard rail along the outer edge of said sidewalk where the adjacent ground was approximately eighteen feet below said sidewalk level, when said guard rail was so improperly and inadequately constructed and maintained that it did not and could not offer reasonably safe and sufficient protection to any person using said sidewalk, whereby such persons would be prevented from falling from said sidewalk and from a height of approximately eighteen feet to the ground below.

"(e) In negligently and wrongfully failing to construct and maintain a guard rail along said dangerous declivity of such a character as the circumstances there presented reasonably demanded.

"(f) In negligently failing to provide sufficient guard rails wire or other protection whereby any pedestrian using said walkway would be prevented from falling from a height of approximately eighteen feet to the ground below while attempting to traverse and walk upon said faultily and negligently constructed and maintained sidewalk or walkway.

"(g) In negligently failing to provide for the use of pedestrian traffic and the public generally a reasonably safe way to travel over and upon said walkway.

"(h) In negligently failing to maintain adequate and sufficient lights or a lighting system along said Wall Street, thereby leaving an inherently and intrinsically dangerous nuisance open to anyone using said walkway or sidewalk of said Wall Street, in darkness, and thereby increasing the hazard and probability of serious and permanent injuries resulting in anyone attempting to use said sidewalk or walkway during the night time.

"(i) In negligently, carelessly, and in violation of its positive duty, constructing and maintaining a highly dangerous inadequate and insufficient sidewalk and walkway on said Wall Street, without reasonable, proper or adequate guard rails along the same, and thereby causing the death of plaintiff's intestate.

"Plaintiff's intestate at the time of her death was an elderly woman, a widow, and the mother of a family, and was at said time and had for a long period of time prior thereto enjoyed excellent health, and was an educated and accomplished person, engaged in a life work of value to herself and her family, and had every reasonable anticipation of many years of active and useful endeavor, and that by reason of the negligent and wrongful acts of omission and commission by the defendant plaintiff's intestate came to her death and the plaintiff has been damaged thereby in the sum of Fifteen Thousand Dollars ($15,000.00).

"That due notice of this claim was presented to the defendant corporation by filing written notice of said claim with the council duly assembled, which said notice of claim was regularly acknowledged on the 14th day of December, 1939, and the payment of which claim was denied by the defendant." Demand for damages, etc.

The defendant denied the material allegations of the complaint and as a further answer and defense, alleges:

"The defendant is informed and believes and so alleges that the plaintiff's intestate did on the 15th day of September 1939, arrive in the City of Asheville, at what is known as the Union Bus Terminal; that when she arrived on the bus in which she had traveled from the State of Florida, she was met by two citizens of the City of Asheville, and proceeded in a westerly direction in the middle of the public street for some feet to where an automobile, the property of Mr. Harry Parker, was parked; that when the plaintiff's intestate reached said automobile she was at that time in the middle of the street where vehicular traffic was carried on and where pedestrians were forbidden to walk; that she made a diagonal left-hand turn and stepped upon the curb, tripping herself and falling over the embankment; that she was warned two times to watch her step, that there was a curb there, and that she might slip and fall; and after receiving said warning the plaintiff's intestate negligently and carelessly stepped upon the curb, causing herself to trip and stumble; and that her careless acts constitute contributory negligence, and contributory negligence is hereby pleaded in bar of any recovery.

"That if, after having gotten off of said bus as mentioned above, the plaintiff's intestate had taken the usual route and walked along a sidewalk that had been provided for pedestrians the accident to the plaintiff's intestate would never have happened, because she could not have tripped over said curb in stepping up; that in failing to comply with the laws of the State of North Carolina and the charter of the City of Asheville, namely, to use said sidewalk instead of the main public street, plaintiff's intestate contributed to her own injury, and her negligent acts herein constitute contributory negligence, and contributory negligence is hereby pleaded in bar of any recovery.

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