RIVERS
v.
TOWN OF WILSON.
No. 98.
Supreme Court of North Carolina.
February 28, 1951.*546 Robert A. Farris, Wilson, for plaintiff, appellant.
Lucas & Rand and Connor, Gardner & Connor, Wilson, for defendant, appellee.
STACY, Chief Justice.
The question for decision is whether the evidence, taken in its most favorable light for the plaintiff, survives the demurrer and carries the case to the jury. The trial court answered in the negative, and we approve.
The plaintiff cites Gasque v. Asheville, 207 N.C. 821, 178 S.E. 848, as direct authority requiring the case to be submitted to the jury, and Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900, as also tending to support her position. Conversely, the defendant relies on the case of Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799, as controlling authority to support the judgment of nonsuit on the facts of the instant record.
The applicable rule is stated by Hoke, J., in Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309, 310, as follows: "The town, however, is not held to warrant that the condition of its streets, etc., shall be at all times absolutely safe. It is only responsible for negligent breach of duty, and, to establish such responsibility, it is not sufficient to show that a defect existed and an injury has been caused thereby. It must be further shown that the officers of the town knew or by ordinary diligence might have discovered the defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.'"
The water-meter box was not in the traveled part of the sidewalk, but in the grass plot between the paved portion and the curb; nor was it hidden, defective or in disrepair. The fact that it was leaking, without more, indicated no unsafeness in its condition; rather that it could be more readily seen. True, this grass plot or tree space between the paved portion of the sidewalk and the curb is required to be kept in a reasonably safe condition for the purposes of its use as a part of the street or highway. 43 C.J. 989; See also 63 C.J.S., Municipal Corporations, § 794. Plaintiff's action is in tort for negligence, which must be established by more than the mere happening of an accident. The existence of a condition which causes injury is not enough. The breach of a legal duty must be made to appear. This is not presumed; res ipsa loquitur is inapplicable. The town is not an insurer of the safety of its streets and sidewalks, although they are required to be kept in a reasonably safe condition.
Measured by these standards, we are constrained to hold that plaintiff's evidence brings the case within the purview and scope of the Gettys opinion. Further elaboration here would appear repetitious and unnecessary. We are content to rest our decision on this decision.
This obviates the necessity of determining whether G.S. § 1-53, like G.S. § 153-64, is limited to claims founded on contract or applies equally to those sounding in tort. We do not reach the question.
Affirmed.