dissenting: The manhole of Maury Street (on which the deceased was traveling on a motorcycle) was located in the street. It was constructed so that its top was below the surface of the street as is usual when located in an unimproved street. It was a part of the system of public utilities maintained by the town for the promotion of the health and convenience of its citizens and it was constructed in accord with approved engineering practice. It has existed in its present location, so far as the evidence discloses, from the time of its original construction as a part of the original plan. Furnishing the convenience, of which the manhole was a part, in promoting the health of the community, was a governmental function. For this reason it may be that the defendant is not chargeable with negligence by reason of the condition complained of which was incidental thereto. Klingenberg v. Raleigh, *197212 N. C., 549, 194 S. E., 297. As tbis question is not presented, I refrain from expressing an opinion.
A municipality is only required to exercise ordinary care to maintain that portion of its streets set apart for vehicular traffic in a reasonably safe condition for those traveling on vehicles who exercise ordinary care for their own safety. Oliver v. Raleigh, 212 N. C., 465, 193 S. E., 853; Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146. “The object to be secured is reasonable safety for travel considering the amount and class of travel which may fairly be expected upon the particular road.” Kelsey v. Glover, 15 Vt., 708; Molway v. Chicago, 239 Ill., 486, 88 N. E., 486.
The duty of a municipality is to exercise reasonable care to keep highways in suitable condition for ordinary travel; Koch v. Denver, 133 Pac., 1119, and not to take extraordinary precautions to maintain them free from ruts, holes and unevenness specially adapted to use thereon of bicycles, tricycles, etc. McQuillin Mun. Corp. (2d), Vol. 7, sec. 2948. “If the streets of cities and towns 'are reasonably safe and convenient for travel generally they are not liable for a failure to make special provisions required only for the safety and convenience of persons using . . . bicycles.’ ” Bethel v. St. Joseph, 171 S. W. (Mo.), 42; Molway v. Chicago, 239 Ill., 486, 88 N. E., 486. The defect which renders municipalities liable must be such as would make a street or highway unsafe for the use of vehicles generally. Molway v. Chicago, supra, 23 L. R. A. (N. S.), 543. A municipality owes no greater duty to bicyclists than to persons riding or driving a horse. Bills v. Salt Lake City, 38 Utah, 507, 109 Pac., 745. The street need not be kept so that it will be specially adapted to the use of bicycles. Pueblo v. Smith, 57 Col., 500, 143 Pac., 281; Emelle v. Salt Lake City, 54 Utah, 360, 181 Pac., 266. This rule would apply with equal force to two-wheel, motor-driven motorcycles.
In determining whether ordinary care has been exercised a distinction must be drawn between improved and unimproved streets. Likewise, consideration must be given to the location — whether it is in the thickly settled section of the town or in its outlying territory where its use is not so general. What is ordinary care is to be determined from the circumstances. Dirt streets cannot be maintained with that degree of smoothness and regularity a traveler has a right to anticipate in a paved street. Both the elements and the traffic of vehicles will cause irregularities, depressions, bumps and ridges.
In Koch v. Denver, supra, the evidence disclosed three depressions in close proximity, one of which ranged from 5 to 8 inches in depth, one 3 to 4 inches in depth about 18 inches long and from 8 to 10 inches wide, and the third from 1 to 2 inches deep. The court said “such *198depressions can hardly be avoided on dirt thoroughfares.” Of this fact a motorist, when using a dirt street, must take notice.
The manhole was to the right of the center of the street going in the direction the deceased was traveling. The dirt was worn away so that the irregularity in the street caused by the location of the manhole below the level of the surface was saucer or basin shaped and its depth was estimated by witnesses to be from 4 to 6 inches. Actual measurement disclosed that when a straight edge 6 feet long was placed over it the hole was 2 inches deep and when a strip 12 feet long was used the hole was 4 inches deep. There was at least 7 feet of clear and unobstructed road to the right of the hole and at least 11 feet to the left. It was not concealed but could be easily observed and seen by those using the street. So testified witnesses for the plaintiff and for the defendant, and there is no evidence contra. And, as stated, ample space existed on each side for vehicles to pass in safety. Under these conditions it did not constitute such a defect as would cause a person of ordinary prudence to anticipate that it was dangerous or likely to cause injury to occupants of vehicles using the street. Ferguson v. Asheville, supra; Houston v. Monroe, 213 N. C., 788, 197 S. E., 571, 13 R. C. L., 398.
It is only against danger which can or ought to be anticipated in the exercise of ordinary care and prudence that the municipality is bound to guard. Dillon v. Raleigh, 124 N. C., 184, 32 S. E., 548; Fitzgerald v. Concord, 140 N. C., 110, 52 S. E., 309; Sehorn v. Charlotte, 171 N. C., 541, 88 S. E., 782; Ferguson v. Asheville, supra.
I am of the opinion, therefore, that there is no sufficient evidence of negligence on the part of the defendant.
Even if negligence be conceded the plaintiff should not be permitted to recover. The street on which deceased was traveling was not a principal thoroughfare — nor was it a main artery for the residential section; It was a graded, unimproved “top soil” dirt street only four blocks long, located in the suburban manufacturing and residential section connecting the Southern Oil Company plant with Barnes Street — apparently opened and maintained primarily as an outlet for the Southern Cotton Oil Company. The deceased was riding a motorcycle — a two-wheel vehicle, much more easily thrown out of control than the average conveyance. Under these conditions it was his duty to anticipate irregularities in the street and exercise commensurate care for his own safety.
A person traveling on a street is required, in the exercise of due care, to use his faculties to discover and avoid dangerous defects and obstructions, the care required being commensurate with the danger or appearance thereof. Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211; Russell v. Monroe, 116 N. C., 721, 21 S. E., 550. He is guilty of contributory negligence if by reason of his failure to exercise such care he *199fails to discover and avoid a defect or obstruction which, is visible and obvious. Pinnix v. Durham, 130 N. C., 360, 41 S. E., 932; Ferguson v. Asheville, supra.
The depression could be seen when he was 50 or more feet away. His machine could have been stopped within 6 feet. If he was keeping a proper lookout he disregarded the defect and drove into the basin shaped hole. If he was not keeping a proper lookout he was not exercising that degree of care the law required of him. Ferguson v. Asheville, supra.
He had a perfectly safe way to go, either to the right or to the left, but he chose, either purposely or by reason of his own inattention, the alleged dangerous way. Groome v. Statesville, 207 N. C., 538, 177 S. E., 638; Dunnevant v. R. R., 167 N. C., 232, 83 S. E., 347.
The following cases, in principle, are likewise in point: Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424; Speas v. Greensboro, 204 N. C., 239, 167 S. E., 807; Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211; Alexander v. Statesville, 165 N. C., 527, 81 S. E., 736; Stone v. Benson, 214 N. C., 280, 195 S. E., 25; Burns v. Charlotte, 210 N. C., 48, 185 S. E., 443; Finch v. Spring Hope, 215 N. C., 246, 1 S. E. (2d), 634; Lalor v. N. Y., 208 N. Y., 431, Ann. Cas., 1916-E, 431.
In the Finch case, supra, it appeared that the plaintiff was walking on an unimproved sidewalk in the nighttime and stumbled over the roots of a tree which extended 4 or 5 inches above the surface of the sidewalk. It was held that the motion to dismiss as of nonsuit should have been sustained.
In the Lalor case, supra, it was held that it did not constitute negligence to permit the existence in a street of a hole the size of a barrel head and four inches deep.
There is not a scintilla of evidence in the record that the deceased could not have seen or that he did not see the alleged defect in ample time to avoid it; and it was his duty to avoid a defect that was obvious and apparent. The record, therefore, discloses contributory negligence as a matter of law.
When it appears from all the evidence that the plaintiff ought not to recover it is the duty of the Court to say so. Houston v. Monroe, supra, and cases there cited.
I do not consider that the authorities cited in the majority opinion in support of the position that there is evidence of negligence are in point. In each a pedestrian was involved. Naturally a hole or defect which would not be at all dangerous for a vehicle might create a serious hazard for one walking on the sidewalk.
In Sehorn v. Charlotte, supra, the defect was a hole 16 to 18 inches in diameter about one-half way on the sidewalk and which was originally knee deep. At the time it was partly filled with untamped dirt and was *200at least 4 to 7 inches deep. As a new trial was granted it is not made to appear whether the occurrence was during the day or night.
Swinson v. Realty Co., 200 N. C., 276, 156 S. E., 545, was an action against a private corporation for damages resulting from the maintenance of a hydrant which projected 9 inches over the sidewalk, thereby creating a public nuisance. The plaintiff, a pedestrian, came in contact therewith. It was during the nighttime and no light was provided.
In Gasque v. Asheville, 207 N. C., 821, 178 S. E., 848, a pedestrian at night stepped on a defective water meter lid that gave way and precipitated the plaintiff into a deep hole. There was evidence that the lid was of an unsafe type and had been used for a long period of time and that the condition thereof could not be seen by the plaintiff. The charge of the court quoted in the opinion deals, generally, with the duty of a municipality in respect to the maintenance of its streets. It was not the subject of an exceptive assignment of error and was not, therefore, before the Court for review.
Likewise, the authorities cited in support of the position that the question of contributory negligence was for the jury, are not in point.
In Cole v. Koonce, 214 N. C., 188, 198 S. E., 637, there was evidence 'tending to show that the defendants’ agent had parked a truck so that it extended over the paved portion of the road; that there was no light burning on the truck; that it was about 5 a.m., dark and foggy, and the lights on the plaintiff’s car did not disclose the presence of the truck in time for him to avoid a collision.
Ferguson v. Asheville, supra, involves an obstruction in the street. The plaintiff was traveling on an automobile at night and there is evidence that the obstruction could not be seen. It is there said by the Court: “If, under these circumstances and the condition surrounding the ramp, the plaintiff, E. J. Ferguson, Jr., saw or by the exercise of reasonable care could have seen the ramp in time to have avoided the accident, and the accident followed as a result of his failure so to do, the plaintiff, E. J. Ferguson, Jr., would be guilty of such negligence as would insulate any negligence of the defendant in permitting the ramp to remain on the street unguarded.” Hughes v. Luther, 189 N. C., 841, 128 S. E., 145; Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488; Speas v. Greensboro, 204 N. C., 239, 167 S. E., 807.
But even if we concede that there was sufficient evidence to require the submission of the issues to a jury, it clearly appears to me that the defendant is entitled to a new trial for error in the charge on the issue of damages.
After explaining to .the jury that it was not to give the -equivalent of human life and should allow nothing for suffering or out of sympathy *201tbe court explained tbe method to be followed in determining tbe income of tbe deceased during tbe period of bis expectancy of life. It then charged tbe jury:
“This amount, this gross amount, must be reduced to its present cash value which would necessarily be less than tbe gross amount and which may be arrived at by dividing tbe gross sum by one dollar plus tbe legal rate of interest (6%), for tbe expectancy years of tbe deceased, as present worth of a sum payable at some future period without interest is such an amount as being put at interest will amount to the sum at the period when it becomes due.”
It will be noted that tbe court used tbe term “gross” rather than “net” three separate times. A careful examination of this feature of tbe charge as a whole convinces me that tbe meaning of tbe term “gross” as used by tbe court, is not so explained as to make tbe patent error harmless. My conclusion that it was harmful is fortified by tbe amount of tbe verdict when it is considered in tbe light of tbe evidence.
Furthermore, if tbe members of tbe jury were able to interpret and understand tbe last clause above quoted (which was a material part of tbe charge), they possess an acuteness of mind to which I make no claim. To me it is unintelligible and meaningless; and serves only to confuse.
For tbe reasons stated I am unable to agree with tbe majority.
Stacy, C. J., and WiNborNe, J., concur in this opinion.