Beaver v. Town of China Grove

22 S.E.2d 434, 222 N.C. 234, 1942 N.C. LEXIS 73

• Court: Supreme Court of North Carolina
• Decided: November 4, 1942
• Status: Published

Opinion

Stacy, C. J.

In the circumstances disclosed by the record, it would seem that the demurrer to the evidence should have been sustained, if. not upon the principal question of liability,, then upon the ground of insulated negligence. Oliver v. Raleigh, 212 N. C., 465, 193 S. E., 853; Chinnis v. R. R., 219 N. C., 528, 14 S. E. (2d), 500; Butner v. Spease, 217 N. C., 82, 6 S. E. (2d), 808.

There is no debate as to the liability of a municipality for the negligent failure to maintain its streets in a reasonably safe condition, Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146, albeit the municipality is not an insurer of the safety of travelers upon its streets. Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424; Houston v. Monroe, 213 N. C., 788, 197 S. E., 571; District of Columbia v. Moulton, 182 U. S., 576; Walker v. Wilson, ante, 66.

It is likewise conceded that ordinarily one may assume the public streets to be in a reasonably safe condition. But this principle is not applicable here. Welch v. McGowan, 262 Mo., 709, 172 S. W., 18. The driver of the car in which plaintiff was riding had actual knowledge of the condition of the street, that it was then under repair.

It is a rule of general observance that in cases of exceptional danger, as where, for example, construction work is being performed in a street, of which the traveling public has full knowledge, the exercise of reasonable care, under such circumstances, means the exercise of such care as is commensurate with the exigencies of the occasion. McQuillin Municipal Corporations (2d), Vol. 7, p. 263; Quirk v. Bradley Contracting Co., 161 N. Y. Sup., 296. The accepted standard under varying conditions is the conduct of the reasonably prudent man. Cole v. R. R., 211 N. C., 591, 191 S. E., 353. “The standard is always the conduct of the reasonably prudent man, or the care which a reasonably prudent man would have used under the circumstances. Tudor v. Bowen, 152 N. C., 441, 67 S. E., 1015. The rule is constant, while the degree of care which a reasonably prudent man exercises varies with the exigencies of the occasion.” Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358; Meacham v. R. R., 213 N. C., 609, 197 S. E., 189.

The only allegation of negligence against the town of China Grove is, that it failed to warn the traveling public of the hazardous condition of the street. Even so, the driver of the car had driven over this street the night before. He knew the manhole was there. He does not say that he could not see it — -only that he did not see it. As observed by the Supreme Judicial Court of Maine in Lane v. Lewiston, 91 Me., 292, “No one needs notice of what he already knows,” and “knowledge of the danger is equivalent to prior notice.” Gorham v. Ins. Co., 214 N. C., 526, 200 S. E., 5.

It follows, therefore, that as the driver of the car in which plaintiff was riding had actual knowledge of the condition of the street and could see the manhole “sticking up above the level of the street like a sore thumb,” the proximate cause of plaintiff’s injury must be attributed to the negligence of the driver of the car. Butner v. Spease, supra. He says the roads were rough all over town, “you had to pick out the best spots and take it as you came to it.” There was a safe way to pass without hitting the manhole. Groome v. Statesville, 207 N. C., 538, 177 S. E., 638. The record impels the conclusion that the active negligence of the driver was the real, efficient cause of the plaintiff’s injury. Smith v. Sink, 211 N. C., 725, 192 S. E., 108, and cases there assembled.

Reversed.