Watkins v. City of Raleigh

• Decision Date: 04 January 1939
• Docket Number: 462.
• Citation: 200 S.E. 424,214 N.C. 644
• Parties: WATKINS v. CITY OF RALEIGH.
• Court: North Carolina Supreme Court

200 S.E. 424

214 N.C. 644

WATKINS v. CITY OF RALEIGH.

No. 462.

Supreme Court of North Carolina

January 4, 1939

Appeal from Superior Court, Wake County; M. T. Spears, Judge.

Action by Mrs. N. J. Watkins against the City of Raleigh for injuries sustained in fall on sidewalk. From an adverse judgment, plaintiff appeals.

Affirmed.

CLARKSON SCHENCK, and SEAWELL, JJ., dissenting.

As respects municipality's liability for injuries resulting from defective sidewalks, a person injured as result of a defective sidewalk is guilty of contributory negligence, if by reason of his failure to exercise such care as is commensurate with the danger or appearance thereof, he fails to discover and avoid a defect which is visible and obvious.

City was not liable for injuries sustained by a pedestrian who in broad daylight stepped into a depression caused by the breaking of the finishing surface of a sidewalk and fell where pedestrian had an unobstructed view of the sidewalk and could have seen the depression had she looked.

Civil action to recover damages for injuries resulting from alleged actionable negligence.

Defendant denies material allegations of complaint, and pleads contributory negligence of plaintiff.

The evidence offered by plaintiff tends to show that: On the morning of 9 May, 1936, at about 10:30 o'clock while walking in a westerly direction along the sidewalk on the north side of Hillsboro Street between Dawson and Harrington Streets in the city of Raleigh, North Carolina, she stepped in a hole in the concrete and fell, and, in consequence suffered personal injury. The hole is described as being approximately two and a half feet wide, three feet long and two inches or more deep, the edges of it being broken, jagged and sharp and the bottom consisting of slick, jagged and sharp rock. The hole was there in 1932, and has since been there continuously. Plaintiff had walked along the sidewalk in October, 1935; but, she testified, that at that time she did not see the hole. There is a row of trees between the sidewalk and curbing of the street. At the time plaintiff fell the trees were in full foliage, casting shadows on the sidewalk.

Plaintiff testified, in part: "It was a perfectly fair day. * * * As I hit the ground I saw just a hole in front of me * * * When I got up I looked to see what caused me to fall, and there was a hole in the cement sidewalk. I was walking west, my back toward the Capitol, just as carefully as I ever walked. I wasn't looking for nothing, as far as I thought everything was all right. I was walking in my usual careful gait. The sidewalk looked perfectly smooth all the way down as far as I could see, just like shadows across the oak trees, you could see the shadows across the sidewalk all along. * * * And when I did get up I looked back to see and I was in a great big hole * * * The picture is a perfect representation at the very day I fell * * * My foot stepped on something hard and slipped and my heel caught against something, one of those sharp rocks and it just throwed me right down. I never had any knowledge or information that there was any such place as that in the sidewalk prior to the time I was hurt. I never had heard of it".

On cross examination plaintiff further testified: "* * * The hole was not all the way across the sidewalk * * * I should say there is plenty of room for a person to pass on either side. I can't say where I was looking at the time, but I was walking in perfect confidence, never crossed my mind there was anything wrong. I did not look for a hole. I was just walking along * * * There was nothing at all obstructing my view of the sidewalk, nothing in the world to keep me from seeing it * * * The sidewalk was no darker than it is when the sun is shining and the leaves are along there, shady, * * * shadows all along from the leaves of the trees * * * If I had been a distance from it and seen it I evidently would have thought it was shadows on the sidewalk. I didn't see it but after I got off from it I looked back and I couldn't tell no more than if it had been shadows. When I got down ready to cross Harrington Street I stopped and looked back and it looked just like a shadow then. I did not try to look at it anywhere nearer than Harrington Street except when I got up * * *

Q. How did the shadows look before you got there? A. I didn't notice them no more than just seeing the trees and the leaves on the trees and the sidewalk getting shady. * * *

Q. If you looked as far as from here to that door could you have seen it? A. I certainly could. I could see it now. * * *

N. J. Watkins, husband of plaintiff, testified: * * * I have seen the place where she fell on the sidewalk * * * The first time I saw it after she fell was the next morning * * * The first time I saw it was sometime back in the winter prior to the time she fell * * * There is nothing at all to keep you from seeing it in the day time. * * * There is no obstruction anywhere and it is practically apparent in the middle of the sidewalk. There is a space on both sides of it between the hole and the edge of the sidewalk * * *".

Mrs. M C. Bryan, who lives at the Woman's Club on Hillsboro Street, near the point of the accident, testified: "* *...