Winborne, J.
The situation here is not unlike those in the cases of
Houston v. Monroe,
213 N. C., 788, 197 S. E., 571, and
Watkins v.
Raleigh,
214 N. C., 644, 200 S. E., 424, wherein this Court held that demurrer to the evidence was sustainable “if not upon the principal question of liability, then upon the ground of contributory negligence.”
We are of opinion, however, that the evidence shown in the record on this appeal taken in the light most favorable to plaintiff, as the Court does in passing upon an exception to a judgment as of nonsuit, fails to make.out a ease of actionable negligence, in accordance with ruling of the learned judge who presided at the trial.
In an action for the recovery of damages for injury allegedly resulting from actionable negligence the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.
Whitt v. Rand,
187 N. C., 805, 123 S. E., 84;
Murray v. R. R.,
218 N. C., 392, 11 S. E. (2d), 326;
Mitchell v. Melts,
220 N. C., 793, 18 S. E. (2d), 406, and numerous cases therein cited.
If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue, such as negligence, is a matter of law.
Mills v. Moore,
219 N. C., 25, 12 S. E. (2d), 661.
Guided by these principles, we proceed to consider the factual situation in hand.
I. As the facts relate to the city of Charlotte, these principles of law are applicable :
First: A fire department, maintained by a municipal corporation, belongs to the public or governmental branch of the municipality. And the Courts almost uniformly hold, in the absence of statutory provision to the contrary, that the municipal corporation is immune from liability for injury or damage resulting from negligent acts of omission or commission in connection with the maintenance and operation of a fire department. Hence, the extinguishment of fires is a function which a municipal corporation undertakes in its governmental capacity, and in connection with which, in the absence of statutory provision to the contrary, it incurs no liability, either for inadequacy of equipment or for the negligence of its firemen. See 37 Am. Jur., 699, 38 Am. Jur., 322, Annotations; 9 A. L. R., 143, 84 A. L. R., 514;
Peterson v. Wilmington,
130 N. C., 76, 40 S. E., 853, 56 L. R. A., 959, 11 Am. Neg. Rep., 332;
Howland v. Asheville,
174 N. C., 749, 94 S. E., 524, L. R. A., 1918 B, 728;
Mabe v. Winston-Salem,
190 N. C., 486, 130 S. E., 169.
If the law were otherwise, the evidence here reveals nothing unusual in the manner of operation by the fire department in extinguishing the fire in the drug store building, except that a large volume of water was required to do the job, and the fire damage was great.
Second: While plaintiff concedes that the city, in extinguishing the fire, was engaged in a governmental function, and that no negligence is predicated thereon, she contends that the evidence is sufficient for the jury to find that the city breached its duty in respect to the maintenance of its sidewalks in a reasonably safe condition for use in proper manner by pedestrians.
In this connection, a municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are reasonably safe for travel. See
Ferguson v. Asheville,
213 N. C., 569, 197 S. E., 141, where numerous other cases are cited. See also
Houston v. Monroe, supra,
and
Watkins v. Raleigh, supra.
Hence, a municipality is not an insurer of the safety of persons using its sidewalks, and is liable only for negligence.
Gasque v. Asheville,
207 N. C., 821, 178 S. E., 848.
Moreover, it is only against danger which can or ought to be anticipated in the exercise of ordinary care and prudence, that a municipality is bound to guard.
Watkins v. Raleigh, supra.
The principle, firmly established in our decisions, is clearly stated by
Adams, J.,
in
Markham v. Improvement Co. and City of Durham,
201 N. C., 117, 158 S. E., 852, in these words: “The law imposes upon the governing authorities of a city or town the duty of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who may have' occasion to use them in proper manner. Such authorities are liable 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 and- the occurrence of an injury; he must show that the officers of the city knew, or by ordinary diligence might have known of the defect. Rut actual notice is not required. Notice of a dangerous condition in a street may be implied, and indeed will be imputed to the city or town if its officers should have discovered it in the exercise of due care,” citing cases. See also
Walker v. Wilson,
222 N. C., 66, 21 S. E. (2d), 817.
Applying this principle to the case in hand, the evidence fails to show any breach of duty by the city in maintaining its sidewalks in a reasonably safe condition for those who may have had occasion to use them in proper manner. The act of pumping water into the building to extinguish the fire was an integral part of the performance of the functions of the fire department, and any damage done by the water was in the exercise of a governmental function. Moreover, the flowing of water out of the building on to the sidewalk is not evidence of negligence. Sidewalks are exposed to the elements, and, ordinarily, the fact that they
are wet by rain water would not create a danger against which the city would be expected to guard. Hence, in the exercise of ordinary care and prudence, injury from water on a sidewalk may not be anticipated, or reasonably foreseen.
Moreover, in the instant case, it is not contended that oil was in the water as it was pumped into the building or in. the chemicals used in extinguishing the fire, and there is no evidence that there were any oils in the Liggett Drug Store building. While there is evidence that a week after the fire there were some broken bottles in the store, there is no evidence, or facts from which a reasonable inference may be had, as to what these bottles contained. Indeed, if oil were in the water as it flowed out of the building, the evidence indicates that it was not visible to the eye. Plaintiff’s evidence is that it was colorless.
Free access — add to your briefcase to read the full text and ask questions with AI
Winborne, J.
The situation here is not unlike those in the cases of
Houston v. Monroe,
213 N. C., 788, 197 S. E., 571, and
Watkins v.
Raleigh,
214 N. C., 644, 200 S. E., 424, wherein this Court held that demurrer to the evidence was sustainable “if not upon the principal question of liability, then upon the ground of contributory negligence.”
We are of opinion, however, that the evidence shown in the record on this appeal taken in the light most favorable to plaintiff, as the Court does in passing upon an exception to a judgment as of nonsuit, fails to make.out a ease of actionable negligence, in accordance with ruling of the learned judge who presided at the trial.
In an action for the recovery of damages for injury allegedly resulting from actionable negligence the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.
Whitt v. Rand,
187 N. C., 805, 123 S. E., 84;
Murray v. R. R.,
218 N. C., 392, 11 S. E. (2d), 326;
Mitchell v. Melts,
220 N. C., 793, 18 S. E. (2d), 406, and numerous cases therein cited.
If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue, such as negligence, is a matter of law.
Mills v. Moore,
219 N. C., 25, 12 S. E. (2d), 661.
Guided by these principles, we proceed to consider the factual situation in hand.
I. As the facts relate to the city of Charlotte, these principles of law are applicable :
First: A fire department, maintained by a municipal corporation, belongs to the public or governmental branch of the municipality. And the Courts almost uniformly hold, in the absence of statutory provision to the contrary, that the municipal corporation is immune from liability for injury or damage resulting from negligent acts of omission or commission in connection with the maintenance and operation of a fire department. Hence, the extinguishment of fires is a function which a municipal corporation undertakes in its governmental capacity, and in connection with which, in the absence of statutory provision to the contrary, it incurs no liability, either for inadequacy of equipment or for the negligence of its firemen. See 37 Am. Jur., 699, 38 Am. Jur., 322, Annotations; 9 A. L. R., 143, 84 A. L. R., 514;
Peterson v. Wilmington,
130 N. C., 76, 40 S. E., 853, 56 L. R. A., 959, 11 Am. Neg. Rep., 332;
Howland v. Asheville,
174 N. C., 749, 94 S. E., 524, L. R. A., 1918 B, 728;
Mabe v. Winston-Salem,
190 N. C., 486, 130 S. E., 169.
If the law were otherwise, the evidence here reveals nothing unusual in the manner of operation by the fire department in extinguishing the fire in the drug store building, except that a large volume of water was required to do the job, and the fire damage was great.
Second: While plaintiff concedes that the city, in extinguishing the fire, was engaged in a governmental function, and that no negligence is predicated thereon, she contends that the evidence is sufficient for the jury to find that the city breached its duty in respect to the maintenance of its sidewalks in a reasonably safe condition for use in proper manner by pedestrians.
In this connection, a municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are reasonably safe for travel. See
Ferguson v. Asheville,
213 N. C., 569, 197 S. E., 141, where numerous other cases are cited. See also
Houston v. Monroe, supra,
and
Watkins v. Raleigh, supra.
Hence, a municipality is not an insurer of the safety of persons using its sidewalks, and is liable only for negligence.
Gasque v. Asheville,
207 N. C., 821, 178 S. E., 848.
Moreover, it is only against danger which can or ought to be anticipated in the exercise of ordinary care and prudence, that a municipality is bound to guard.
Watkins v. Raleigh, supra.
The principle, firmly established in our decisions, is clearly stated by
Adams, J.,
in
Markham v. Improvement Co. and City of Durham,
201 N. C., 117, 158 S. E., 852, in these words: “The law imposes upon the governing authorities of a city or town the duty of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who may have' occasion to use them in proper manner. Such authorities are liable 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 and- the occurrence of an injury; he must show that the officers of the city knew, or by ordinary diligence might have known of the defect. Rut actual notice is not required. Notice of a dangerous condition in a street may be implied, and indeed will be imputed to the city or town if its officers should have discovered it in the exercise of due care,” citing cases. See also
Walker v. Wilson,
222 N. C., 66, 21 S. E. (2d), 817.
Applying this principle to the case in hand, the evidence fails to show any breach of duty by the city in maintaining its sidewalks in a reasonably safe condition for those who may have had occasion to use them in proper manner. The act of pumping water into the building to extinguish the fire was an integral part of the performance of the functions of the fire department, and any damage done by the water was in the exercise of a governmental function. Moreover, the flowing of water out of the building on to the sidewalk is not evidence of negligence. Sidewalks are exposed to the elements, and, ordinarily, the fact that they
are wet by rain water would not create a danger against which the city would be expected to guard. Hence, in the exercise of ordinary care and prudence, injury from water on a sidewalk may not be anticipated, or reasonably foreseen.
Moreover, in the instant case, it is not contended that oil was in the water as it was pumped into the building or in. the chemicals used in extinguishing the fire, and there is no evidence that there were any oils in the Liggett Drug Store building. While there is evidence that a week after the fire there were some broken bottles in the store, there is no evidence, or facts from which a reasonable inference may be had, as to what these bottles contained. Indeed, if oil were in the water as it flowed out of the building, the evidence indicates that it was not visible to the eye. Plaintiff’s evidence is that it was colorless. But if the evidence be such that it may be inferred that oil was in the water, as it flowed out of the building, there is no evidence that the city was aware of it, or that the circumstances were such that the officers of the city should have discovered it in the exercise of due care, or that the city had implied notice of it.
II. As the facts relate to defendants owners and lessee of the Liggett Drug Store building: Irrespective of their liabilities
inter sese,
or respectively, and in 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. Moreover, an owner, or an occupant is liable, if at all, for damage caused by the escape of substances from the premises only where some fault can be attributed to him. The owner, or the occupant, is not liable for injuries caused others in the absence of proof of negligence, unless he is shown to have created a nuisance. See 38 Am. Jur., 800-801. Negligence, Sec. 139.
Applying these principles to present case: There is no evidence that the fire in the building was caused by the negligence of the owners or of the occupant. And the conditions resulting from extinguishing the fire were brought about by the city in the exercise of a governmental function, over which the owners, or the occupant had no control, and for which they, or it, may not be held responsible. If oil from the drug store escaped in the water, the evidence fails to show that it was due to any fault on the part of the owners or of the occupant.
III. As to contributory negligence: It is seen from the evidence that plaintiff saw and knew as much about the condition of the sidewalk as anyone else. If she could not see oil in the water, it is fair to assume that officials of the city in the exercise of ordinary care could not see it. If they in the exercise of ordinary care could have seen it, she should have seen it in the exercise of ordinary care for her own safety. More
over, tte evidence tends to sbow tbat there was a safe way for her to travel, but sbe elected to take the short route and walk on the wet sidewalk. Under these circumstances, her conduct bars her recovery.
However, as we view the entire evidence, plaintiff's fall is just one of those events which sometimes occur without one’s foresight or expectation, and therefore not anticipated, the consequences of which must be borne by the unfortunate sufferer.
Simpson v. R. R.,
154 N. C., 51, 69 S. E., 683.
Other exceptions have been considered, and fail to show prejudicial error.
The judgment below is
Affirmed.