Haney v. Town of Lincolnton

ClaeicsON, J.,

dissenting: I think there was plenary evidence in this action for actionable negligence, to be submitted to tbe jury, as was done by tbe court below. The defendant introduced no evidence and at tbe close of plaintiff’s evidence made a motion for judgment as in case of nonsuit. C. S., 567. The court below overruled this motion, in which I can see no error.

Tbe issues submitted to tbe jury, and their answers thereto, were as follows: “(1) Was tbe death of Sue Gurley, plaintiff’s intestate, caused by tbe negligence of tbe defendant town of Lincolnton, as alleged in tbe complaint? A. 'Yes.’ (2) What damage, if any, is tbe plaintiff entitled to recover ? A. ‘$10,000.’ ”

Tbe court below rendered judgment on tbe verdict.

In Speas v. Greensboro, 204 N. C., 239 (241), tbe principle is laid down: “Tbe exercise of due care to keep its streets in a reasonably safe and suitable condition is one of tbe positive obligations imposed upon a municipal corporation. Tbe discharge of this obligation cannot be evaded on tbe theory that in tbe construction and maintenance of its streets tbe municipality acts in a governmental capacity, Graham v. Charlotte, 186 N. C., 649; Willis v. New Bern, 191 N. C., 507; Michaux v. Rocky Mount, 193 N. C., 550; Hamilton v. Rocky Mount, 199 N. C., 504.

“Tbe court instructed tbe jury that tbe erection of tbe ‘silent policeman’ at tbe intersection of tbe streets was not enough to constitute negligence (Valley v. Gastonia, 203 N. C., 664), and left to tbe determination of the jury tbe question whether the city had used due care in providing-adequate lights. If tbe city failed to exercise such care, it was negli*289gent. Bunch v. Edenton, 90 N. C., 431; Bailey v. Winston-Salem, 157 N. C., 253; Pickett v. R. R., 200 N. C., 750.”

Tbe old case of Bunch v. Edenton, supra, is applicable to tbis case. At page 433 is tbe following: “It appears in tbe record tbat one Lee owned a lot situate along and immediately adjoining Main Street in tbat town, and on tbe side of tbe lot next to-, adjoining and bordering on tbe outer side of tbat street there was an excavation for tbe purpose of a cellar, eight feet deep, running immediately along tbe street tbe distance of forty feet, and extending back from it about sixty feet.

“Tbe defendants bad knowledge of tbis excavation. It was permitted to remain open and unenclosed for a month without any railing, fence, or other sufficient barrier to prevent persons passing tbat way from falling into it, and no light was placed at night on tbe street near tbis opening.

“Tbe plaintiff, passing along tbat street on tbe sidewalk on a very dark night, was unable to see the pit, missed tbe sidewalk, fell into it and broke bis thigh, doing him serious damage. Tbe jury found tbat be did not by bis negligence contribute to tbe injury to himself.

“Tbe defendants contend generally tbat tbe plaintiff has no cause of action against them, and tbat if in any case they could be liable for injuries happening on tbe streets in said town, they could not be held liable in tbis case, because the pit that occasioned the injury to the plaintiff was outside of the street and sidewallc.” (Italics mine.)

At page 434: “It was tbe positive duty of tbe corporate authorities of tbe town of Edenton to keep the streets, including tbe sidewalks, in 'proper repair’ — that is, in such condition as tbat tbe people passing and repassing over them might at all times do so with reasonable ease, speed and safety. And proper repair implies also tbat all bridges, dangerous pits, embankments, dangerous walls and tbe like perilous places and things very near and adjoining the streets, shall be guarded against by proper railings and barriers. Positive nuisances on or near tbe streets should be forbidden under proper penalties, and, when they exist, should be abated.” (Italics mine.)

Tbis “death trap” bad been there for years, and by tbe exercise of reasonable care should have been known to tbe defendant. Four or five automobiles bad run off of it at tbe same place. Perhaps a cost of less than $25.00 expended by tbe defendant in guarding and putting warning signs would have saved tbis young girl’s life, or a light placed there by defendant, to show the declivity. Guy Barringer was at tbe wheel and beside him was Sue Gurley, who was killed when tbe ear went down into tbe ravine. Guy Barringer testified: “Miss Sue Gurley did not have any interest in tbe car. I was driving tbat night. She did not own any part of tbe car.” Tbis made her a passenger, and tbe law is *290well settled in tbis State tbat Barringer’s negligence must be tbe sole and only proximate cause to prevent recovery.

James Haney and Miss Hayes (now Mrs. Haney) were going from Hickory by way of Lincolnton, SLelby, and tben to York, S. C., to be married. It was Christmas morning, about 5 o’clock. Guy Barringer testified further: “I stayed down here a few summers before that, and that was the highway then. I knew they had a new road built, and I thought it had been extended straight on. It was foggy and a fine mist of rain and wé had to hinder creep along and we got up to- this fill and went right over the end of it. I did not see any sign or anything and had our lights on dim and they shone right down on the road and they did not show very far in front. I was operating the car from 15 to SO an hour between the Lutheran Church and the place we went over. I was driving on the right-hand side of the street. Main Street ivas lit up there, there was not any light down there. I did not see a thing, no kind of warning, no barrier or anything to indicate warning. The ravine was around eight or ten feet deep. My front wheels were just off of the hard-surface road when I realized we were g'oing over. I gave a caution, I forget the exact words I used, but something to the effect to grab yourselves, everybody look out, or something to that effect. I applied brakes, the pavement was slick, and they did not do much good. I tried to hold it straight, because I thought maybe it would not be deep and would not turn over, but it was wet and soggy. It is elevated to the north. The front wheels stuck in the mud and kindly twisted over on the right side. Miss Sue Gurley was on the right-hand front seat. She was sitting with her left knee up in the seat, sitting on her left foot, with her back kindly toward the door.

“As soon as it was over I asked if anybody was hurt. Miss Hayes and Jim in the back seat said they were not hurt and Sue did not answer. I tried to lift her up, I thought she had fainted; I could lift her up, but I could not get her head out. . . . There were no lights on the street as we proceeded to the point where we went off, there were not any lights at all anywhere. My car was equipped with brakes and they were in good working order, and also equipped with lights, two headlights and dash light and tail light, and they were burning. It was a model 1928 Pontiac. ... I knew that was the Shelby road, but I did not tell him I knew that road. I was driving about fifteen to twenty miles an hour and my lights were burning. I drove right on to the point where this road turns around and just drove right on down the embankment. I did not turn around the road at all. I did not know I was supposed to turn. I thought it went straight. Yes, I looked. I had my lights on dim and I could see fifteen to twenty feet ahead of the front of my car. If I had turned them on full I could not have seen at all. I was driving at the rate of fifteen to twenty miles and my brakes were in good order. *291Eunning at fifteen miles an hour, if I applied my brakes I could stop in five or six feet when the roads are not wet. I didn’t apply my brakes until my front wheels were off of the pavement. I could have seen a distance of fifteen feet and could have stopped my car, if it had been dry, within six or seven feet. I did not apply my brakes until the front wheels were off the pavement, ready to start down. The ground was level — even with the road — and we were going down a little grade and naturally that would malee the light shine a little closer and nobody would know when something just dropped straight off. You could see out there, but you couldn’t see exactly (a black road) if there was one there, you could not tell whether there was one there or not. ¥e were straining our eyes to see where we were. Yes, I could see fifteen feet in front of me. I could see fifteen feet of the road before I ran off. I was looking, I was really watching the road that night. I could see an ordinary road fifteen feet. I could see that night with my lights dim fifteen feet. What was the matter with me that I didn’t see it until I left the pavement is that it takes a little time to do anything. It takes you longer to act than it does to look. I have driven enough to know that if I am driving in a fog that I have to keep a lookout. There wasn’t anything to keep a man from following this pavement, and there wasn't anything there to tell us to turn. That paving ran around here, but you couldn’t see around the side." (Italics mine.)

J. O. Shuford testified: “Christmas, 1932, where Church Street comes into the intersection, the embankment went straight into the ravine. I had never noticed any barrier or sign there. I have noticed the place recently. There was one city street light in the neighborhood of that point — one on the corner. That light was not burning at 5 o’clock Christmas morning, 1932.”

J. 0. Blanton testified: “I had occasion to pass by this place often, most every day. There were no barriers at the end of the street at all, and no signs, and there has never been any that I know of.”

Chief of Police Farris: “I know the point at which the wreck occurred. On 25 December, 1932, that was one of the streets of the town of Lincolnton. There was no fence or barrier of any kind up at this curve that I ever saw'. That ravine at the end of this street, at that time, must have been four or five feet drop and kept getting deeper — six or seven feet deep — maybe more.”

S. E. War lick: “The ravine at the end of the curve has existed ever since the road was hardsurfaced, possibly twelve or fifteen years before the wreck. I have never observed any sign or warning on the road along toward this ravine, and never noticed any fence or barrier along there.”

Hilliard Hoyle: “There were no signs or barricades at this intersection whatever. As I approached the scene of the wreck I could not see the car off down in there.”

*292Grady Sisk testified: “No, there were not any street lights burning, and there were no signs or barricades. To my knowledge that place had been in that same condition ever since we lived there, right around five years; it was that way all that time. Q. State whether you ever saw any automobile wrecks at this point prior to that time where this car went over the embankment and wrecked? A. I have seen four or five ears run off that fill. Q. Off that same fill? A. Tes. Q. At the time you saw those cars go over that embankment, tell his Honor whether the road was in the same condition as it was on Christmas, 1932? A. Yes. Q. Now, tell of those wrecks that you remember and who they were that had the wrecks. A. Mr. Mull went off there.” He also told of the others.

The court below charged the well-settled principle laid down in White v. Really Co., 182 N. C., 536 (538): “His Honor correctly charged the jury that if the negligence of McQuay, the owner and driver of the Ford car, was the sole and only proximate cause of plaintiff’s injury, the defendant would not be liable; for, in that event, the defendant’s negligence would not have been one of the proximate causes of the plaintiff’s injury. Bagwell v. R. R., 167 N. C., 615. But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, would be entitled to recover; because the defendant cannot be excused from liability unless the total causal negligence, or proximate cause, be attributable to another or others. ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, he is liable.’ Wood v. Public Service Corp., supra, and cases there cited.” The evidence was to the effect that the plaintiff’s intestate, Sue Gurley, was a passenger in the car. The negligence, if any, of Guy Barringer could not have been the sole and only proximate cause of Sue Gurley’s death.

It is a matter of common knowledge that every place in North Carolina similar to that in the present controversy has, by the efficient State Highway Commission, placed barriers painted white, reflectors and white cross-bars to warn motorists of the danger of this semi-dead end on the State highway system. Those who ride the roads know this to be a fact. The learned, able and painstaking judge gave the contentions fairly on both sides of the controversy and the charge covered every aspect of the law applicable to the facts. A jury of twelve men “of good moral character and of sufficient intelligence” (C. S., 2312) heard the evidence and rendered the verdict against defendant — men living in the vicinity. Tf we are ever to lessen the appalling death toll, in North Carolina and elsewhere, of automobile accidents, the courts *293must bold municipalities and others to due care in guarding these “death traps.” A leading North Carolina daily has carefully gotten up facts under "Deadly Roads" which are as follows: ‘During the 18 months the United States was in the "World "War, 684 North Carolinians were killed in battle, 238 died of wounds, 601 died of disease, 87 were killed in different ways, making the total of North Carolina men who gave their lives for their country 1,610.

“During that same period, 4,128 North Carolinians were wounded. During the period from 1928 through 1933, a total of 4,429 persons were killed in automobile accidents on North Carolina highways. During that period there were 20,624 accidents in which persons were killed or injured and 29,144 persons were injured.

“The highway death toll this year through July has been 450 and highway patrol officials have estimated that the death toll for the year will exceed 1,000. The deaths by years are: 673 in 1928; 690 in 1929; 777 in 1930; 762 in 1931; 674 in 1932; 853 in 1933. The toll of injuries by year is: 4,801 in 1928; 5,084 in 1929; 4,426 in 1930; 5,075 in 1931; 4,783 in 1932; and 4,975 in 1933.”

I think beyond question that the judgment of the court below should be affirmed. It may mean from the majority decisions that municipalities will be penurious, negligent, and careless with its streets at the expense of human life and limb. This young girl’s life was snuffed out, as the jury in the court below found, by the defendant not using due care to provide barriers and warnings; when it knew, or, in the exercise of ordinary care, should have known, of the danger. Five other drivers of automobiles had run down this bank and had wrecks at the same place. It was night and the place was dark when the wreck occurred, and defendant had no light there, so that the traveler on the highway could see the pitfall, and death was the result.