Whitley v. City of Durham

122 S.E.2d 784 (1961)

256 N.C. 106

James WHITLEY v. CITY OF DURHAM.

No. 676.

Supreme Court of North Carolina.

December 13, 1961.

*785 Lisbon C. Berry, Jr., Wilmington, and Daniel K. Edwards, Durham, for plaintiff appellant.

Claude V. Jones, Durham, for defendant appellee.

PER CURIAM.

On oral argument counsel for defendant properly conceded the evidence was sufficient to support the answers to the first and third issues and if plaintiff was entitled to recover, the attorney's fee fixed by the court was within the statutory authority of that court. G.S. § 6-21.1.

The sole question for decision therefore is: Does the evidence establish as a matter of law plaintiff's negligence proximately contributing to his injury? Our examination leads to the conclusion that the answer is no.

The evidence permits these factual inferences: The collision occurred at night. Plaintiff was traveling 15 to 20 m. p. h. His lights were on and in good condition. Chautauqua connects Cecil and Nelson Streets. These intersections were lighted, but there were no lights between Cecil and Nelson. The manhole was midway between the streets and in the center of Chautauqua. Chautauqua was a dirt street with cinders and stone scattered on the surface. There was a ditch on each side of the street. The street had been graded with sharp declines to the ditches. Vehicles traveling in the direction plaintiff was going had to pass over the manhole to stay out of the ditch. The manhole protruded two or three inches above the surface of the ground. The center of Chautauqua Street was raised all the way from Cecil to Nelson. The car tracks on each side were lower than the center of the street. There was loose dirt and rock around the manhole. The under portion of the automobile struck the elevated part of the manhole. Plaintiff was thrown against the door of his car, causing it to open. He fell or was thrown out and knocked unconscious.

*786 The description given would not, in our opinion, cause a prudent motorist to anticipate the loose stone, dirt, and cinders around the manhole would be pushed aside by the automobile, permitting it to drop on the manhole. Whether the injury was proximately caused by plaintiff's negligence was, as the trial court held, a question to be determined by the court sitting as a jury and not by the court as a matter of law.

The judgment of the Superior Court which sustained defendant's motion to nonsuit and for that reason dismissed the action is

Reversed.