59 S.E. 701 | N.C. | 1907
The plaintiff is a physician, and on the night he was injured he had started to the house of his patient, at No. 1006 North Brevard Street, in the city of Charlotte. Brevard Street had been excavated, and the houses on the east side, including the house of his patient, were left standing from 10 to 12 feet above the level of Brevard Street. The doctor got off the street car at the intersection of Brevard and Thirteenth streets, there left Brevard Street and ascended some steps cut out of the bank, crossed Thirteenth Street and started to his patient's house across the intervening yards. After crossing Thirteenth Street and passing into Yandle's yard, which was the first yard after leaving Thirteenth Street, he struck a hedge of evergreen about midway between the house and the street. It was a dark night and the plaintiff could not see. He knew that Brevard Street, in front of Yandle's yard, had been excavated, and he knew that the bank on the east was very steep, if not perpendicular. When he struck the hedge, he moved along the hedge, not towards the house, where there could have been no (337) danger, but towards the street, which, he knew, had been excavated. When he fell he was sliding his feet along so as to feel his way and not fall into the excavation, and at the same time he was holding onto the hedge as a protection and trying to pull himself around the hedge and get into the sidewalk, which he thought was there. At this point the ground gave way under the plaintiff and he fell into Brevard Street.
At the close of plaintiff's evidence the court granted the defendant's motion for nonsuit, and plaintiff appealed. *246 The plaintiff was not injured by traveling along the street or sidewalk, not by any defect in the street or so near the street, as to make it dangerous for travel. In fact, the plaintiff was not traveling the street at all. The trouble was, not that Brevard Street was dangerous to travel, but that Yandle's lot was. The city was not responsible for injury sustained by one not traveling its streets. It was not required to see that it was safe for plaintiff to traverse a private lot.
In Scranton v. Hill, 102 Pa. St., 378, the plaintiff was passing over a bridge along a public highway and, supposing that he was clear of the bridge (it being in the night-time), turned aside to enter a path which left the highway, and, unfortunately, he turned from the highway before he had reached the path and fell over the edge of the bridge. The Court in that case decided that the following instructions should have been given: "It being the undisputed testimony in this case that the plaintiff elected to leave the traveled street for the purpose of passing over an adjacent lot without the limit of the highway; that, though the right to pass over such adjacent lot may exist so far as to protect the (338) plaintiff from trespass, yet the safety of the way in which he passed to such adjacent lot is at his own peril; that the defendant is not under any legal obligation to keep such passage to an adjacent lot in safe condition, and therefore the plaintiff cannot recover."
In Bunch v. Edenton,
In Walker v. Reidsville,
The judgment of nonsuit is
Affirmed.
Cited: Darden v. Plymouth,