Dunning v. Forsyth Warehouse Co.

158 S.E.2d 893 (1968)

272 N.C. 723

Margaret Ann DUNNING by her Next Friend, Walter F. Sowers v. FORSYTH WAREHOUSE CO., t/a Star Warehouse.

No. 454.

Supreme Court of North Carolina.

February 2, 1968.

*894 John F. Motsinger, Deal, Hutchins & Minor, by Roy L. Deal, Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Norwood Robinson, Winston-Salem, for defendant appellee.

HIGGINS, Justice.

On the former appeal, this Court affirmed the judgment of nonsuit and dismissed the action against the City of Winston-Salem upon the ground the plaintiff had failed to give the notice required as a condition precedent to a suit against the city. This Court also affirmed the nonsuit of the action against the present defendant *895 upon the ground the evidence failed to show the defendant created or was responsible for the dangerous condition of the sidewalk. The evidence did not disclose who constructed the dangerous culvert, placed a thin metal sheet over the top, then added enough concrete over the metal to make the surface even with the sidewalk.

However, the allegation and evidence against the defendant permit a finding that at the time the defendant constructed its warehouse, the city ordinance required a permit for the construction of the drainage culvert. The contractor for the warehouse actually cut the concrete surface of the sidewalk and constructed the culvert. At the time the plaintiff received her injuries, the concrete covering over the metal sheet near the street where the plaintiff was walking had been broken, but the metal strip was intact. The plaintiff, walking nearest the street, stepped on this metal sheet which, because of rust and corrosion, gave way under her weight. The jagged edge of the metal severed the Achilles tendon, causing serious and permanent injuries.

The plaintiff's right to recover must have its foundation in negligence. "Negligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them. Mattingly v. North Carolina R.R. Co., 253 N.C. 746, 117 S.E.2d 844. The breach of duty may be by negligent act or a negligent failure to act. Williams v. Kirkman, 246 N.C. 510, 98 S.E.2d 922." Moore v. Moore, 268 N.C. 110, 150 S.E.2d 75.

Ordinarily, a municipality is responsible for the condition of its sidewalks. G.S. § 160-54; Hester v. Durham Traction Co., 138 N.C. 288, 50 S.E. 711, 1 L.R.A.,N.S., 981. However, one other than the municipality may be held liable for injuries caused by a defect in the sidewalk if he created the defect. See Seagraves v. City of Winston (and Crawford Plumbing Co.), 170 N.C. 618, 87 S.E. 507; Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842; Hedrick v. Akers, 244 N.C. 274, 93 S.E.2d 160. "* * * (I)n so far as pedestrians are concerned, any liability of owner, or of occupant of abutting property for hazardous condition existent upon adjacent sidewalk is limited to conditions created or maintained by him, and must be predicated upon his negligence in that respect." Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E.2d 411; McCarthy v. Shaheen, 264 Mass. 90, 161 N.E. 878; Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166; 88 A.L.R.2d 363; Hughes v. City of New York, Sup., 236 N.Y.S.2d 446; Boetsch v. Kenney, 9 N.J. Misc. 390, 154 A. 194; 88 A.L.R.2d 363.

The evidence at the trial was sufficient to permit the jury to find the defendant created the defective condition which resulted in plaintiff's injuries. The Court's judgment of nonsuit because of failure to show defendant's negligence was error. However, defendant having pleaded plaintiff's contributory negligence, the judgment of nonsuit may be sustained if plaintiff's contributory negligence appears as a matter of law. Hedrick v. Akers, supra, citing many cases.

Did the plaintiff prove herself out of court by showing her own contributory negligence as a matter of law? The evidence permits the inference that a 1½ covering of concrete over the metal was broken, but the evidence also discloses, or at least permits the inference, that the metal covering was unbroken, its defective condition not ordinarily observable until it gave way under the plaintiff's weight. Bailey v. City of Asheville, 180 N.C. 645, 105 S.E. 326. The new evidence that defendant was responsible for the defective condition supplied the deficiency in the evidence as determined by our former opinion. The evidence presented jury questions. The nonsuit was improvidently granted.

Reversed.