F. M. BOLDRIDGE
v.
CROWDER CONSTRUCTION CO.
No. 242.
Supreme Court of North Carolina.
April 29, 1959.*217 Carswell & Justice, Robinson, Jones & Hewson, Charlotte, for plaintiff-appellant.
Kennedy, Covington, Lobdell & Hickman, Mark R. Bernstein, Fairley & Hamrick, Charlotte, for defendant-appellee.
HIGGINS, Justice.
The appeal presents two questions of law: (1) Did the court commit error in dismissing the second cause of action at the close of all the evidence? (2) Did the court commit error in its rulings on admissibility of evidence and in the charge on the issue of contributory negligence?
The finding against the plaintiff on the latter issue precludes any recovery based on negligence. Wilson v. Camp, 249 N.C. 754, 107 S.E.2d 743; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357.
The plaintiff's principal contention is that the case should have been submitted to the jury on his second cause of action: "That defendant's unnecessary and intentional obstruction in the public street * * * constituted both a public nuisance from which plaintiff suffered special damages and a private nuisance causing injury to the plaintiff * * *. As a proximate result of the intentional conduct of the defendant * * * and of the maintenance of a nuisance by the defendant, the plaintiff was caused to fall or be thrown into the street and caused to sustain severe, painful and permanent injuries * * *."
As bearing on his right to proceed both on negligence (first cause) and nuisance (second cause) the plaintiff cites Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682; Swinson v. Cutter Realty Co., 200 N.C. 276, 156 S.E. 545; Beckwith v. Town of Stratford, 1942, 129 Conn. 506, 29 A.2d 775. Other cases on the subject are Jenkins v. Duckworth & Shelton, Inc., 242 N.C. 758, 89 S.E.2d 471; Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311. Examination will disclose, however, that the cases cited are not applicable to a single physical injury of the type sustained by the plaintiff in the manner disclosed by the evidence.
The prayer for relief in each alleged cause of action is for $25,000 as compensation for all injuries (temporary and permanent), physical pain and suffering, loss of time, and cost of medical treatment, all of which was proximately caused by the plaintiff's fall while trying to negotiate the ridge of dirt the defendant had wrongfully and negligently placed in his pathway. He testified: "I fell on the insidethe street side, * * * When I fell I got up and I was so surprised I had fallen and I looked and I saw this side here, * * * wasn't like what I had been going over previouslythat there had been some other dirt put along in there and it just gave way. If it been like it was when I had been walking on it I wouldn't have fallen." The sentence italicized was stricken on defendant's motion, to which the plaintiff excepted. In passing, we may say the sentence was properly stricken as a conclusion. Jones v. Bailey, 246 N.C. 599, 99 S.E.2d 768.
It is all too plain from the evidence, the allegations, the prayers for relief, that the plaintiff's cause of action is based on negligence, not on nuisance either public or private. Swinson v. Cutter Realty Co., supra; Butler v. Carolina Power & Light Co., 218 N.C. 116, 10 S.E.2d 603, 606; Godfrey v. Western Carolina Power Co., 190 *218 N.C. 24, 128 S.E. 485. Quotations from the Butler case seem particularly pertinent here:
"Indeed, taking the evidence according to its reasonable inferences, the nuisance, if it may be called such, was negligence-born, and must, in the legal sense, make obeisance to its parentage.
"Doctrinal distinctions may not be pressed too far. To be helpful in administration and to lend themselves in aid of justice, they must be kept close to the realities. After all, it is the factual situation out of which the legal consequences flow, not the formal aspect, or the technical label which we conveniently apply.
"Under the facts of this case, we see no transmutation of negligence into nuisance which would prevent the rights and liabilities of the parties from being properly probed by the issues submitting to the jury. As adequately expressing the opinion of this court upon the matter, we quote from an opinion written by Chief Judge Cardozo of the New York Court of Appeals, subsequently renowned Associate Justice of the United States Supreme Court, in McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 392, 57 A.L.R. 1; `Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in the application to nuisance of one class have been thoughtlessly transferred to nuisance of another. There has been forgetfulness at times that the forms of actions have been abolished and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance.'"
In our opinion, the evidence in this case was insufficient to establish plaintiff's right to recover on the basis of nuisance, either public or private. Andrews v. Andrews, 242 N.C. 382, 88 S.E.2d 88; Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923; King v. Ward, 207 N.C. 782, 178 S.E. 577; Holton v. Northwestern Oil Co., 201 N.C. 744, 161 S.E. 391; 66 C.J.S. Nuisances § 8, p. 739 et seq.; 39 Am.Jur., Nuisance, p. 280 et seq. The plaintiff's own evidence shows that the new dirt which caused his fall had been in place less than 15 minutes. It was put there incident to street work then under way. That this street work caused the plaintiff and others some inconvenience may be assumed. In the nature of things road work and street repairs involve some inconvenience and annoyance. This the individual must put up with in order to provide facilities for safe and convenient travel. Sanders v. Atlantic Coast Line R. Co., 216 N.C. 312, 4 S.E.2d 902.
The first cause of action offered the plaintiff full opportunity to present the pertinent facts relating to his injury. After hearing, the jury found negeligence in the plaintiff's favor, contributory negligence against him. Errors on the latter issue only would be prejudicial.
The trial court properly refused to permit the plaintiff to introduce in evidence the contract between the city and the defendant showing the manner in which the repair work should be carried on. Conceivably the contract might have some bearing on the defendant's negligence. But that was established. Its pertinency, however, on the plaintiff's contributory negligence is not apparent. See Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551.
The objections to the parts of the charge relating to the issue of contributory negligence are without merit. The court properly charged as to the burden of proof, the constituent elements of contributory negligence, properly reviewed the evidence, and applied the law to the facts as testified by the witnesses. The evidence of the *219 plaintiff's fall in broad daylight, under the circumstances described, was sufficient to warrant the finding that the plaintiff's own negligence contributed to his injury. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571. The defendant, not having appealed, does not raise the question whether it could reasonably foresee that serious injury would result from the placing of fresh dirt on the ridge. It should have expected that one who crossed the ridge on foot would get dirt on his shoes or in the cuff of his trousers; but it is questionable whether serious injury was reasonably foreseeable.
The plaintiff's assignments of error fail to disclose any reason why the result of the trial should be disturbed.
No error.