Willis v. City of Newbern

24 S.E. 706, 118 N.C. 132

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Avery, J.:

The defendant, in any view of the testimony, was making an improvement in its streets. ’Whether the purpose was to drain the sidewalks or the plaintiff’s lot more perfectly, the work might well have been undertaken, as we must assume that it was, either to better the condition of the sidewalks as highways or in discharge of the duty ot looking after the sanitary condition of the city. The municipality was liable for any injury caused by want of ordinary care and skill in carrying out its plans or for failure to exercise reasonable diligence to protect the owner of the lot or the public against danger, to which its authorities had reasonable ground to believe she or other persons would be exposed. Russell v. Monroe, 116 N. C., 720. The opening in the ditch into which the plaintiff fell was inside her front gate and beside the walk that led to it. It was the duty of the city to cover the hole so as to protect persons who passed along the walk against the danger of falling into it. This was but a prudent precaution to avert accident that might be justly apprehended, if the opening was insufficiently covered or not covered at all. Bunch v. Edenton, 90 N. C., 431. But the city placed a board cover over the sink-hole, which, according to the plaintiff’s evidence, was insufficient, and in passing over it to go to the pump on the street the plank gave way, so as .to precipitate her into the hole and seriously injure her. It was the duty of the municipality to provide against accident to persons that its governing authorities must have expected to pass in and out of plaintiff’s gate, and the failure to place a covering over the sink-hole that was sufficient to sustain the weight of the plaintiff was culpable negligence. Nathan v. Railroad, at this Term. ' She had a right not only to demand and expect that the city would discharge its duty by putting a cover over the hole, but when the plank was placed upon it she was warranted in assuming and acting upon the idea that the duty had been properly performed. Russell v. Monroe, supra; Thompson v. Winston, at this Term. The city was authorized to improve the streets and sidewalks and by the plaintiff’s license, if not empowered to do so by its charter, it could open the drains or sewers into plaintiff’s lot. Whether acting under its delegated authority or under a license from the abutting owner, a municipality is answerable in making such improvements as that described by the witnesses for such injury to persons or property as are caused by want of care in doing the work. Meares v. Wilmington, 9 Ired., 73; Wright v. Wilmington, 92 N. C., 156; Moffitt v. Asheville, 103 N. C., 237; Love v. Raleigh, 116 N. C., 391. If the city undertook to extend its drain into the plaintiff’s lot, and its agents in charge of the improvements carelessly left it open, it was justly held answerable for the natural consequences of sucb conduct. There is no merit in the exception to the refusal of the court to give the instruction asked, or the substitution of that given. The court left the jury to determine whether in view of all the surrounding circumstances the plaintiff exercised reasonable care, or such as would have characterized a person of ordinary prudence in venturing upon the plank. This was a compliance with the rule laid down at this Term in Hinshaw v. Railroad and Russell v. Railroad. Eor the reasons given we hold that there was no error.

No Error.