The law imposes upon the mayor and commissioners of incorporated towns the imperative duty of "keeping in proper repair the streets and bridges of the town" (The Code, sec. 3803) and for a failure to fulfill its requirements they may subject themselves to criminal liability. S. v.Commissioners, 15 N.C. 345. The testimony fully warranted the jury in finding that the governing authorities of the town were negligent in leaving open a ditch three feet deep at the point where it crossed a part of the sidewalk, for sufficient space
(two and a half by four feet) to admit the body of a person (727) walking along such footway. Bunch v. Edenton, 90 N.C. 431. But the defendant did not appeal and response to the first issue therefore stands unchallenged. It has been held in many of the leading courts of this country that the previous knowledge of the injured person of the existence of a defect in a sidewalk does not per se establish negligence on his part. Morrill on City Neg., p. 139, and authorities cited; Diviney v. Elmira,51 N. Y., 512; Darling v. Mayor, 18 Hun., 340; Diwire v. Basley,131 Mass. 169; Gilbert v. Boston, 139 Mass. 313.
If the plaintiff was exercising reasonable or ordinary care of her own safety when she fell into the ditch she had a right to demand that the jury respond in the negative to the second issue. Jones Neg. Mun. Corp., sec. 221; Bunch v. Edenton, supra. The evidence is that the plaintiff had never actually noticed "the hole before" though she admits that she might possibly have seen it if she had been paying strict attention to her pathway when she fell. She had a right to expect and to act on the assumption that the authorities of the town had properly discharged their duty by keeping the streets in good repair.Bunch v. Edenton, supra, at page 435; Morrill on City Negligence, pp. 136, 137, 139; Indianapolis v. Gaston, 58 Ind. 224. Perhaps the only exception to this rule is the reasonable requirement that persons must take notice of such structures as the necessities of commerce or the convenient occupation of dwelling houses, such as exterior basement stairs. Bueschung v. St. Louis, etc., 6 Mo., Ap., 85. Walker v. Reidsville,96 N.C. 382, is distinguishable from that at bar because there the pit into which the plaintiff fell was some distance from the sidewalk (56 feet) though it was excavated by the town and upon property owned by it, and the plaintiff had actual notice of its (728) existence.
The burden was on the defendant under our statute to prove contributory negligence, and in order to thus avoid the consequences of its own carelessness it was necessary to show that the plaintiff failed to exercise reasonable or ordinary care for her own safety. If she did not put herself in fault by careless conduct, she had a right to demand that the jury be instructed to answer the second issue in the negative. Jones, supra, sec. 221. To constitute contributory negligence (says Beach in his work on that subject, section 8) there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the injury. Perhaps, besides these two, there are no other necessary elements. Certainly they are the two points of difficulty in the question. "Did the plaintiff exercise ordinary care under the circumstances? Was there a proximate connection between
his act or omission and the hurt he complains of?" We can conceive of no reason and we know no authority for holding the plaintiff to a higher degree of care than that involved in what is known as the rule of the prudent man. What is reasonable care is to be determined in some, probably most of jurisdictions, largely by the jury, but with us, when the facts are undisputed, by the court. It is the universal rule however that there is no contributory negligence, where the plaintiff acts with ordinary prudence, in view of the surrounding circumstances suggestive of danger. Morrill,supra, pp. 132, 140; Mason v. R. R., 111 N.C. 482; Emry v. R. R.,109 N.C. 589; McAdoo v. R. R., 105 N.C. 140.
As a specific act or omission may be declared negligence at a particular period or under given circumstances, which had been held with other surroundings not culpable at all, so it will be found that (729) the question whether a plaintiff has contributed by his own carelessness to bring about an injury complained of, must be answered after a comprehensive consideration of the conditions confronting him at the time. It was unquestionably error to tell the jury that the plaintiff was required, in order to rid herself of culpability, to exercise under any circumstances more than ordinary care. While the rule of the prudent man is always the test of carelessness on the part of a plaintiff, what is reasonable care does not depend alone upon what a person does or omits to do, but also upon his environments at the moment, when it is contended that his act or omission enhanced his danger. While the rule that a person in order to avoid culpability must exercise such care as a man of ordinary prudence would under similar circumstances use, is always the criterion for testing contributory negligence, as well as negligence, the conditions at the moment may render the same act, at one time, characteristic of a cautious, at another, of a careless man.
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The law imposes upon the mayor and commissioners of incorporated towns the imperative duty of "keeping in proper repair the streets and bridges of the town" (The Code, sec. 3803) and for a failure to fulfill its requirements they may subject themselves to criminal liability. S. v.Commissioners, 15 N.C. 345. The testimony fully warranted the jury in finding that the governing authorities of the town were negligent in leaving open a ditch three feet deep at the point where it crossed a part of the sidewalk, for sufficient space
(two and a half by four feet) to admit the body of a person (727) walking along such footway. Bunch v. Edenton, 90 N.C. 431. But the defendant did not appeal and response to the first issue therefore stands unchallenged. It has been held in many of the leading courts of this country that the previous knowledge of the injured person of the existence of a defect in a sidewalk does not per se establish negligence on his part. Morrill on City Neg., p. 139, and authorities cited; Diviney v. Elmira,51 N. Y., 512; Darling v. Mayor, 18 Hun., 340; Diwire v. Basley,131 Mass. 169; Gilbert v. Boston, 139 Mass. 313.
If the plaintiff was exercising reasonable or ordinary care of her own safety when she fell into the ditch she had a right to demand that the jury respond in the negative to the second issue. Jones Neg. Mun. Corp., sec. 221; Bunch v. Edenton, supra. The evidence is that the plaintiff had never actually noticed "the hole before" though she admits that she might possibly have seen it if she had been paying strict attention to her pathway when she fell. She had a right to expect and to act on the assumption that the authorities of the town had properly discharged their duty by keeping the streets in good repair.Bunch v. Edenton, supra, at page 435; Morrill on City Negligence, pp. 136, 137, 139; Indianapolis v. Gaston, 58 Ind. 224. Perhaps the only exception to this rule is the reasonable requirement that persons must take notice of such structures as the necessities of commerce or the convenient occupation of dwelling houses, such as exterior basement stairs. Bueschung v. St. Louis, etc., 6 Mo., Ap., 85. Walker v. Reidsville,96 N.C. 382, is distinguishable from that at bar because there the pit into which the plaintiff fell was some distance from the sidewalk (56 feet) though it was excavated by the town and upon property owned by it, and the plaintiff had actual notice of its (728) existence.
The burden was on the defendant under our statute to prove contributory negligence, and in order to thus avoid the consequences of its own carelessness it was necessary to show that the plaintiff failed to exercise reasonable or ordinary care for her own safety. If she did not put herself in fault by careless conduct, she had a right to demand that the jury be instructed to answer the second issue in the negative. Jones, supra, sec. 221. To constitute contributory negligence (says Beach in his work on that subject, section 8) there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the injury. Perhaps, besides these two, there are no other necessary elements. Certainly they are the two points of difficulty in the question. "Did the plaintiff exercise ordinary care under the circumstances? Was there a proximate connection between
his act or omission and the hurt he complains of?" We can conceive of no reason and we know no authority for holding the plaintiff to a higher degree of care than that involved in what is known as the rule of the prudent man. What is reasonable care is to be determined in some, probably most of jurisdictions, largely by the jury, but with us, when the facts are undisputed, by the court. It is the universal rule however that there is no contributory negligence, where the plaintiff acts with ordinary prudence, in view of the surrounding circumstances suggestive of danger. Morrill,supra, pp. 132, 140; Mason v. R. R., 111 N.C. 482; Emry v. R. R.,109 N.C. 589; McAdoo v. R. R., 105 N.C. 140.
As a specific act or omission may be declared negligence at a particular period or under given circumstances, which had been held with other surroundings not culpable at all, so it will be found that (729) the question whether a plaintiff has contributed by his own carelessness to bring about an injury complained of, must be answered after a comprehensive consideration of the conditions confronting him at the time. It was unquestionably error to tell the jury that the plaintiff was required, in order to rid herself of culpability, to exercise under any circumstances more than ordinary care. While the rule of the prudent man is always the test of carelessness on the part of a plaintiff, what is reasonable care does not depend alone upon what a person does or omits to do, but also upon his environments at the moment, when it is contended that his act or omission enhanced his danger. While the rule that a person in order to avoid culpability must exercise such care as a man of ordinary prudence would under similar circumstances use, is always the criterion for testing contributory negligence, as well as negligence, the conditions at the moment may render the same act, at one time, characteristic of a cautious, at another, of a careless man.
We do not understand the rule to be that where a defendant has by carelessness left the plaintiff exposed to peril as a natural consequence of its conduct, the failure of the plaintiff to exercise unusual caution to avoid the ensuing danger will be deemed the proximate cause of an injury that would not have been sustained had the defendant in the first instance been faultless. The plaintiff was not bound to exercise more than ordinary care, because she might possibly, before or at the time of sustaining the injury, have thereby discovered that the defendant had carelessly left persons, passing along the sidewalk at the particular place, exposed to danger. A defendant cannot take advantage of his own wrong to hold others to a more rigid rule of watchfulness. The plaintiff was warranted in acting on the assumption that the authorities of the town had done their duty. She was
not required to see and treasure up in her memory the location (730) of every defective place in the sidewalk which she had or might have seen during the day time, nor was she expected to see all such places. She was not required to keep a sharp or constant lookout for what could not be reasonably expected, assuming that the authorities of a town had used ordinary care in the discharge of their duty. Locomotive engineers are required to keep a constant lookout for persons, animals and obstructions on railway tracks in front of trains, because they have reasonable ground to apprehend that some such danger may confront them at any moment. A person is not negligent in failing to provide against what could not have been reasonably expected, much less against a danger that he is warranted in assuming does not exist. Blue v. R. R., post, 955. Had it appeared that the plaintiff actually saw the hole, or that she was warned against it in time to have avoided falling into it, the case would have presented a different aspect. Having no actual knowledge of its existence before she stepped into it, she was not required to exercise the same degree of diligence that an engineer in charge of a train must use, because he has reason to apprehend and provide against danger to his passengers from obstructions, or to men or animals on the track at any moment, while she was justified in acting upon the belief that the authorities had done their duty by keeping the sidewalk in safe condition.
There was error in instructing the jury that the plaintiff was expected to use more than ordinary care. The court should have told them that she was entitled to recovery if the first issue was found in her favor, unless the defendant had shown by preponderance of the testimony that she did not exercise reasonable or ordinary care.
We think that the case, as the facts were developed on the trial, was governed by the principle laid down in Bunch v. (731)Edenton, supra, and that it was not shown that the injury was due to her own negligence. There was error and the plaintiff is entitled to a
New Trial.
Cited: Tankard v. R. R., 117 N.C. 561; Thompson v. Winston, 118 N.C. 666;Willis v. New Bern, ib., 136; Little v. R. R., ib., 1078; Tillett v.R. R., ib., 1045; Sheldon v. Asheville, 119 N.C. 609; McCracken v.Smathers, ib., 619; Dillon v. Raleigh, 124 N.C. 189; Jones v. Greensboro,ib., 312; Neal v. Marion, 126 N.C. 416; Cresler v. Asheville, 134 N.C. 311;Hester v. Traction Co., 138 N.C. 291; Fitzgerald v. Concord, 140 N.C. 112;Kinsey v. Kinston, 145 N.C. 108; Edwards v. Raleigh, 150 N.C. 280;Harvell v. Lumber Co., 154 N.C. 262; Carrick v. Power Co., 159 N.C. 382; Bailey v. Winston, ib., 258; Ovens v. Charlotte, 159 N.C. 334; Styron v. R. R., 161 N.C. 80;Darden v. Plymouth, 166 N.C. 495; Dowell v. Raleigh, 173 N.C. 202;Rollins v. Winston, 176 N.C. 414.