White v. City Of Newberne

• Decision Date: 18 December 1907
• Citation: 59 S.E. 992,146 N.C. 447
• Court: North Carolina Supreme Court
• Parties: WHITE. v. CITY OF NEWBERNE.

59 S.E. 992

146 N.C. 447

WHITE.

v.CITY OF NEWBERNE.

Supreme Court of North Carolina.

Dec. 18, 1907.

1. Municipal Corporations—Obstructions on Sidewalk—Acquiescence—Effect.

A city cannot escape liability for injury to a pedestrian, who, while exercising due care, strikes steps negligently permitted to project upon a sidewalk, because for many years property owners have been permitted to so project their steps.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1606.]

2. Same—Imputed Knowledge of Defect.

Where an obstruction has remained upon a sidewalk for 30 years, it must be presumed the city authorities knew of its existence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1648.]

3. Same—City's Liability.

A city not being liable absolutely for injuries caused by a defective sidewalk, and only bound to provide a reasonably safe way, and liable only for negligence, the mere existence of a defect does not show a cause of action for an injury, but notice of the defect, and power to remedy, and neglect to do so, must be shown.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1589, 1641.]

4. Same—Duty to Light Streets.

In the absence of statutory requirement, a city need not light its streets, and, where a city does so, the character of the lighting rests largely within the authorities' discretion, and, in an action for injury caused by a defective sidewalk at night, that the street was defectively lighted does not of itself show negligence, but is only evidence on the principal question whether, at the time and place of the injury, the sidewalk was reasonably safe.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1656.]

Appeal from Superior Court, Craven County; Neal, Judge.

Personal injury action by E. J. White against the city of Newberne. From a judgment for plaintiff, defendant appeals. New trial ordered.

There was evidence tending to show that on the night of June 23, 1906, plaintiff going along Middle street, one of the public streets of the city of Newberne, struck his right foot against some steps which projected in frontof a residence and into the sidewalk of said etreet. These steps extended about four feet onto the sidewalk, leaving something like five or six feet of passway between the bottom step and the driveway of the street, and they had existed so in this and other portions of the city for as much as 30 years; that it was a dark and drizzly night on this occasion, and the public lights were out at the time. Plaintiff testified that the lights were out on the night of the injury, and had been frequently going out for several months prior to that time; that the city owned the light plant and sold lights to private persons for gain. There was no testimony that the streets were not reasonably safe, except as to the existence of the steps, and the absence of or defective lighting. On issues submitted, and under the charge of the court, the jury rendered a verdict that defendant was guilty of actionable negligence; that plaintiff was at the time in the exercise of proper care, and awarded substantial damages for the injury. Judgment on the verdict for plaintiff, and defendant excepted and assigned for error: "(4) That the court erred in its refusal to give the first prayer for instructions of defendant, as follows: That municipal corporations are not bound to light the streets at night; that, while its charter may confer the power, this power is of a governmental and discretionary nature, and for exercise of the same the city would not be liable. (5) That the court erred in its refusal to give the fourth prayer for instructions, as follows: That the city is not liable absolutely for defect in its streets, sidewalks, and the mere existence of such defects therefore is not sufficient to constitute a cause of action; that the city is not held to guarantee safety, but is only held to provide a reasonably safe way of travel, and the ground of liability to private party for injury while passing over the sidewalk or streets is only a liability for negligence or neglect, and the mere existence of an obstruction or defect Is not in itself sufficient, but to constitute negligence it must be shown that the authorities of the city had notice of the defect, or obstruction, and had power to remedy the same, and neglected to do so. (G) That the court erred in its refusal to give the fifth prayer for instructions, as follows: That if the jury shall find that from its early days steps and porches have been allowed upon the sidewalks of the streets, and that they had been used by the property holders from ancient times, the city should not be held liable for failure to compel the removal of the same."

D. L. Ward, for appellant.

W. D. MeIver, for appellee.

HOKE, J. (after stating the facts as above). Considering the defendant's assignments of error in reverse order, the position taken that the projection of the steps upon the sidewalk was sanctioned by the continuous existence of such a condition for 25 or more years can not be sustained. If this projection of the steps was such an obstruction of the street that it amounted to an actionable wrong, it cannot be rendered lawful by lapse of time, however great. As said in Elliott on Roads and Streets (2d Ed.) p. 706: "No length of time will render a public nuisance, such as the obstruction of a highway, legal, or give the person guilty of maintaining it any right to continue it to the detriment of the...