Waters v. City of Roanoke Rapids

153 S.E.2d 783 (1967)

270 N.C. 43

Elsie W. WATERS v. CITY OF ROANOKE RAPIDS.

No. 195.

Supreme Court of North Carolina.

April 12, 1967.

*784 *787 Nicholas Long, Roanoke Rapids, and Banzet & Banzet, Warrenton, for defendant appellant.

Allsbrook, Benton, Knott, Allsbrook & Cranford, Roanoke Rapids, for plaintiff appellee.

LAKE, Justice.

The basis upon which a city or town may be held liable for damages to a pedestrian injured by a fall while walking upon its sidewalk is thus stated by Parker, J., now C. J., speaking for the Court in Smith v. City of Hickory, 252 N.C. 316, 113 S.E.2d 557:

"The governing authorities of a town or city have the duty imposed upon them by law of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who use them in a proper manner. Liability arises only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect in the street or sidewalk and the injury: he must also show that the officers of the town or city knew, or by ordinary diligence, might have known of the defect, and the character of the defect was such that injury to travellers using its street or sidewalk in a proper manner might reasonably be foreseen. Actual notice is not required. Notice of a dangerous condition in a street or sidewalk will be imputed to the town or city, if its officers should have discovered it in the exercise of due care."

To the same effect, see: Mosseller v. City of Asheville, 267 N.C. 104, 147 S.E.2d 558; Faw v. Town of North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799; Bailey v. City of Winston, 157 N.C. 252, 72 S.E. 966; Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309.

It is the duty of the city to exercise a reasonable and continuing supervision over its streets and sidewalks, including the inspection thereof in a manner and with a frequency reasonable in view of the location, nature and extent of the use of such street or walk. Mosseller v. City of Asheville, supra; Revis v. City of Raleigh, 150 N.C. 348, 63 S.E. 1049; Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675. The city is, of course, charged with notice of any condition upon its sidewalks or streets which such an inspection would have disclosed to it. Faw v. Town of North Wilkesboro, supra. However, it is not every defect or inequality in the level of a sidewalk which will render the city liable to a person who falls as a result thereof. Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571. The city is not liable for an injury sustained by such a fall unless a reasonable person, observing the defect prior to the accident, would have concluded that it was of such a nature and extent that, if it were allowed to continue, an injury to some person using the walk in a proper manner could reasonably be anticipated. Mosseller v. City of Asheville, supra; Fitzgerald v. City of Concord, supra. It is not sufficient to absolve the city that the condition be one not likely to cause injury in the daytime. The sidewalk must be reasonably safe for use at night under such light as the city provides, or causes to be provided. Bunch v. Town of Edenton, 90 N.C. 431; *788 McQuillin, Municipal Corporations, 3rd ed., § 54.12.

Proof that a condition, from the continuance of which a likelihood of injury to someone using the sidewalk in a proper manner might reasonably be foreseen, had existed for so long a time that inspection of the sidewalk at reasonable intervals would have brought it to the knowledge of the city fixes the city with notice of the existence of that condition. Bailey v. City of Winston, supra; Fitzgerald v. City of Concord, supra. Once the city has notice, actual or constructive, of the existence of such condition upon its sidewalk, it is not instantaneously subject to liability for subsequent falls, but the city must then act with due diligence and due care to remove the danger. Mosseller v. City of Asheville, supra.

To survive a motion for judgment of nonsuit, the plaintiff must introduce evidence sufficient to support these findings by the jury: (1) She fell and sustained injuries; (2) the proximate cause of the fall was a defect in or condition upon the sidewalk; (3) the defect was of such a nature and extent that a reasonable person, knowing of its existence, should have foreseen that if it continued some person using the sidewalk in a proper manner would be likely to be injured by reason of such condition; (4) the city had actual or constructive notice of the existence of the condition for a sufficient time prior to the plaintiff's fall to remedy the defect or guard against injury therefrom.

If the plaintiff's evidence, considered in the light most favorable to her, together with inferences in her favor which may reasonably be drawn therefrom, is sufficient to permit a finding of each of these things, the motion for judgment of nonsuit should be overruled, so far as the question of the city's negligence is concerned. So considered, the plaintiff's evidence in this record is sufficient to permit, though not to require, the jury to find each of the above elements of the plaintiff's right to recover.

The motion for judgment of nonsuit could be sustained on the ground of contributory negligence by the plaintiff only if the plaintiff's evidence, construed most favorably to her, establishes so clearly that no other conclusion can reasonably be drawn therefrom that the plaintiff, as she walked upon this sidewalk, failed to exercise the care which a reasonable person would have exercised in so walking at that time and place. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536. So considered, the plaintiff's evidence does not compel that conclusion. Consequently, there was no error in overruling the motion for judgment of nonsuit.

We are not to be understood as holding that there was a duty upon the city to pave the sidewalk in question or that a city is liable, as a matter of law, to one who, while walking upon an unlighted and unpaved sidewalk, falls as the result of an inequality in the level of the sidewalk surface. We hold only that in this instance the evidence is sufficient to permit the submission of the issues of negligence and contributory negligence to the jury under proper instructions as to the legal principles involved. They were so submitted and the jury answered them in favor of the plaintiff.

We find no merit in the defendant's exceptions to the admission of testimony by the plaintiff which located the point of the fall with reference to the principal business district of the city and with reference to the Colonial Store, or to the admission of the testimony by the plaintiff to the effect that Jackson Street was heavily traveled both day and night. Such testimony was relevant upon the question of the frequency of inspection required of the city concerning the condition of the sidewalk at this point.

*789 The defendant's exceptions to the admission of testimony concerning the difference between the level of the paved walk from which the plaintiff stepped and the level of the dirt portion of the walk 18 inches beyond the end of the pavement are likewise without merit. While the plaintiff's testimony indicates that her last step forward did not carry her as far as 18 inches from the paved portion of the walk, the condition of the unpaved portion of the walk throughout this vicinity was competent upon the question of whether the condition of the sidewalk was such, in nature and extent, as to put the city upon notice that injury to one using the walk at night could be foreseen if this condition were allowed to remain.

There is also no merit in the city's exception to testimony by the plaintiff's witness as to the comparative levels of the paved portion of the walk and various points upon the unpaved portion of the walk within 18 inches of the end of the pavement. The witness testified that he made these measurements by laying one measuring rule upon the surface of the pavement, its end projecting out over the unpaved walk, and, with another rule, measuring the distance from the under edge of the first rule down to the surface of the dirt sidewalk. One does not need to be an expert surveyor or engineer to make or to testify concerning such measurements. Any intelligent adult person could make them and in testifying thereto would be testifying as to facts, not stating opinions and conclusions drawn by him from the facts. The defendant could have, if it had seen fit, offered evidence in conflict with this testimony and the credibility of the witnesses would be for the jury to determine. These measurements required no greater skill than would any other measurements of distances and depth.

No Error.

BRANCH, J., took no part in the consideration or decision of this case.