Love v. City of Asheville

187 S.E. 562, 210 N.C. 476, 1936 N.C. LEXIS 137

Opinion

Per Curiam.

We concur in the ruling of the court below that the evidence fails to make out a case of actionable negligence against the defendant. While it was the duty of the city to exercise ordinary care to maintain its streets and bridges in a condition reasonably safe for those having occasion to use them in a proper manner, it must be made to appear not only that there was a failure of such duty, but that the negligent breach thereof was the proximate cause of the injury complained of. Markham v. Improvement Co., 201 N. C., 121; Pickett v. R. R., 200 N. C., 750.

It was not incumbent upon the city to erect and maintain barriers proof against any degree of force, nor to keep its streets and highways entirely free from ice resulting from natural causes. 7 McQuillan Mun. Corp. (2d Ed.), 2973.

The happening of an injury does not raise the presumption of negligence. There was no eye-witness as to how the death of plaintiff’s intestate occurred. The burden was on the plaintiff to show that the city of Asheville was negligent, and that its negligence was the proximate cause of the injury. This he has failed to do.

It is unnecessary to decide the other questions discussed in the briefs and oral arguments.

Affirmed.