Well v. City Of Raleigh

• Decision Date: 21 March 1917
• Docket Number: (No. 254.)
• Citation: 91 S.E. 849
• Parties: DO WELL v. CITY OF RALEIGH.
• Court: North Carolina Supreme Court

91 S.E. 849

(173 N.C. 197)

DO WELL

v.CITY OF RALEIGH.

(No. 254.)

Supreme Court of North Carolina.

March 21. 1917.

Appeal from Superior Court, Wake County; Connor, Judge.

Action by Willard L. Dowell against the City of Raleigh. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

This is a civil action and was brought for the recovery of damages for the wrongful death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence, in failing to keep one of its streets in a reasonably safe condition. It appears that on the morning of March 22, 1914, R. L. Johnson, plaintiff's intestate, was driving along South street in the city of Raleigh, in a milk wagon drawn by horse; that the kingbolt was broken, and the body of the wagon was detached and fell, and Johnson, who was then sitting in the wagon, was thrown through the glass front of his wagon to the ground. He was taken up in an unconscious condition and in a few moments thereafter died. There was evidence, on the part of the plaintiff, that in South street at the point where the wagon fell to the ground there were three ditches, or excavations, across the street on the south side thereof, not far apart, and that when a vehicle ran into and across the ditches, or excavations, the front wheels would enter one about the time the rear wheels entered another; that this caused very violent and successive jerks of the wagon; that the first excavation to the south was from six to eight inches indepth; the second excavation from eight to ten inches in depth, and a third, at the place where the wagon body fell to the ground, was from eight to ten inches in depth. On the morning in question, the street was covered with a light snow, which had been blown into the ditches and excavations, completely covering the same and leaving the street, to all appearances, safe for travel. There was also evidence tending to show that South street was one of the much-traveled streets of the city and that, at other points in the street there were holes, and excavations which rendered the same unsafe. There was a policeman's call box near the holes or excavations where Johnson was killed which required policemen of the city to come to the place at short intervals of time. The defendant denied all negligence, and introduced evidence tending to show that the holes in question were of slight depth, and that the street at this particular place was in a reasonably safe condition for travel. The usual issues in actions for negligence were submitted to the jury. The judge instructed the jury in part as follows:

"You will exclude from your consideration any and all testimony as to the condition of South street or any part of it, other than the place where it is admitted that the wagon fell, for notwithstanding that the street may have been in bad condition elsewhere, and that the defendant may have been negligent as to the condition elsewhere, that would not make the defendant liable to the plaintiff in this case. So your inquiry will be, first, what was the condition of the street immediately at the point at which the wagon fell? Were there defects in the street? Were these defects such as to render passage over the street unsafe?"

In this connection, it may be stated that there was evidence that South street was in worse condition at other places than it was at the place where the intestate's injuries were received.

The jury answered the first issue "No"; that is, that there was no negligence. Judgment was entered for the defendant, and plaintiff appealed.

Douglass & Douglass and R. N. Simms, all of Raleigh, for appellant.

WALKER, J. (after stating the facts as above). [1] There are two questions to be considered in this case:

1. As to the condition of the street at places other than the one where the accident occurred. The court admitted the proof, or rather it seems to have been let in without any objection. It may be that, in its present form, it was not competent, as it extends to the entire length of the street and is not restricted to that part of it near the place where the intestate was killed. We find this stated in one of the authorities:

"For the purpose of proving or disproving negligence with respect to the particular defect or obstruction which caused the injury, evidence of similar defects, obstructions, or conditions existing at other places, or of like conditions, ob structions, or methods in other cities is ordinarily inadmissible. But evidence of similar defects, obstructions, or conditions in the immediate vicinity under like conditions is admissible as tending to show the existence of the particular defect or obstruction, or to fix constructive notice thereof on the municipality. Thus such evidence is generally held admissible where the accident or injury occurs on a sidewalk of uniform construction and material for considerable length, and the other defects or condition offered in evidence were in the same walk and vicinity."

Nor does it appear to what extent the other portions of the street were defective, nor whether the alleged defects were near to or remote from the one in question. We need not pass upon the admissibility of this evidence because there was no objection to it, and therefore express no opinion in regard to it. But plaintiff excepted to the instruction of the court relating to it, and we must ascertain if the benefit of it was taken away from him by the charge. The learned judge was right in stating that a defect at any other place in the street would not create a liability, unless they found that, by reason of defendant's negligence, there was a defect at the place where intestate was thrown from the wagon, and that his death was proximately caused by it, but the language of the court went beyond this, as we think, and excluded the evidence from the consideration of the jury. It is likely that it was not so intended, but that is the fair construction of it.

2. The declaration of the intestate as to the condition of the wagon was incompetent. It was not a declaration against interest, as at that time he had no interest to serve or disserve. He had no cause of action himself, as his death was instantaneous, nor did he even have any interest in this cause of action. It is one not known to the common law, but created by the statute, and the beneficiaries take, not by any inheritance or succession from him, but solely because they are named in the statute as the recipients of the fund recovered for the death caused by the defendant's negligent or wrongful act. The cause of action never arose until the death of the intestate, and then not to him but to those who are designated by the statute to take the fund recovered. They acquire the right by the statute alone, and not because of any privity with the intestate, for none such exists between them, in any proper sense of that term. This is well settled by our decisions. Baker v. Railroad Co., 91 N. C. 308; Taylor v. Cranberry Co., 94 N. C. 526; Best v. Kinston, 106 N. C. 205, 10 S. E. 997; Killian v. Railroad Co., 128 N. C. 261, 38 S. E. 873; Hartness v. Pharr, 133 N. C. 571, 45 S. E. 901, 98 Am. St. Rep. 725; Bolick v. Railroad Co., 138 N. C. 371, 50 S. E. 689; Gulledge v. Railroad Co., 147 N. C. 234, 60 S. E. 1134; Hall v. Railroad Co., 146 N. C. 345, 59 S. E. 879; Bennett v. Railroad Co., 159 N. C. 345, 74 S. E. 883; Broadnax v. Broadnax, 160 N. C. 432, 76 S. E. 216, 42 L. R. A. (N. S.) 725; Hood v. Telegraph Co., 162 N. C. 02, 77 S. E. 1094; Hartis v. Electric Railway Co., 162 N. C. 236, 78 S. E. 164, Ann. Cas. 1915A, 811. In Hood v. Telegraph Co., supra, the court said:

"The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased, and the recovery is not assets in the usual acceptation of the term."

And in Hartness v. Pharr, supra, we said:

"Whatever the varying forms of the statutes may be, the cause of action given by them, and also by the original English statute, was in no sense one which belonged to the deceased person or in which he ever had any interest, and the beneficiaries under the law do not claim by, through, or under him, and this is so although the personal representative may be designated as the...