Webster v. City of Charlotte
| Citation | 22 S.E.2d 900,222 N.C. 321 |
| Decision Date | 25 November 1942 |
| Docket Number | 524. |
| Parties | WEBSTER v. CITY OF CHARLOTTE. |
| Court | United States State Supreme Court of North Carolina |
Civil action to recover damages for personal injuries sustained by plaintiff when he fell on one of the public streets in the City of Charlotte, due to the defective condition of the sidewalk.
It is alleged that the defendant negligently permitted South A Street to become in a dangerous and unsafe condition "when it knew that the sidewalk adjacent to the curbing as heretofore related, was uneven, that is, the surface of the sidewalk; that there were holes in it, and that a child would be liable to stumble on said sidewalk", etc.
The evidence discloses that on September 5, 1931, the plaintiff a boy eight years of age, was walking along the sidewalk on A Street, between sundown and dark, when he fell because of a drop of four or five inches where the pavement stopped in the middle of the block, and severely injured his knee. He says
Plaintiff's attorney gave notice of claim on March 16, 1936, when the plaintiff was thirteen years of age.
Before the plaintiff had rested his case, the court inquired of counsel whether they had any further evidence bearing upon the question of negligence. Counsel replied in the negative whereupon, the court advised counsel that he did not think the plaintiff could get along on the issue of negligence. In deference to this suggestion, no further evidence was offered, but the parties stipulated what the evidence would be in respect of the extent of plaintiff's injuries.
From judgment of nonsuit entered upon the evidence as offered, the plaintiff appeals, assigning errors.
Guy T. Carswell and John M. Robinson, both of Charlotte, for plaintiff, appellant.
Tillett & Campbell, of Charlotte, for defendant, appellee.
The plaintiff was injured on a public sidewalk in the City of Charlotte--the east sidewalk on South A Street. In the middle of the block there is a short strip of pavement, which ends about midway the block. Opposite the north end of this pavement, there was a slab missing from the curbing. This caused the dirt to wash away, leaving a drop of four or five inches from the end of the pavement to the dirt portion of the sidewalk. The condition had existed for a year and a half prior to plaintiff's injury.
Plaintiff alleges that he was injured as a result of the defect in the sidewalk.
Under the decisions in Bell v. City of Raleigh, 212 N.C. 518, 193 S.E. 712, and Radford v. City of Asheville, 219 N.C. 185, 13 S.E.2d 256, it would seem that the evidence was sufficient to carry the case to the jury on the issue of negligence.
The defendant contends, however, that the judgment of nonsuit should be sustained (1) because of the failure of the plaintiff to give notice of his claim within six months of his injury, as required by the defendant's charter, and (2) for that the notice given was insufficient.
Neither of these questions was mooted in the court below, and the case was cut short by the court's intimation that he did not think the plaintiff could get along on the issue of negligence. The situation is somewhat analogous to that appearing in the case of Morgan v. Royal Ben. Soc., 167 N.C. 262, 83 S.E. 479, where it was thought a kindred error may have disadvantaged the appellant in making out his case. Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854. But however this may be, there has been no ruling in the court below on either question. See Ex parte Kumezo Kawato, 63 S.Ct. 115, 87 L.Ed. --, decided November 9, 1942.
Undoubtedly, we have decisions to the...
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