233 N.C. 480 | N.C. | 1951
The following excerpt from the charge constitutes the only exception brought forward and discussed in plaintiff’s brief: “Our court has held in Groome v. Statesville (207 N.C. 538), that if there are two ways'open to a person to use — one safe and the other dangerous — the choice of the dangerous way with knowledge of the danger constitutes contributory negligence, and where a person sui juris, that is, aboye the age of minority, and so on, knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence which will bar his recovery.”
The plaintiff has no quarrel with this instruction as an abstract statement of the law, applicable to the facts in the Groome Case, but as applied to the facts of the instant record, she contends that serious injury was occasioned to her suit, because of its impertinency and distracting or misleading effect. S. v. Sally, ante, 225, 63 S.E. 2d 151; S. v. Lee, 193 N.C. 321, 136 S.E. 877; S. v. Bryson, 200 N.C. 50, 156 S.E. 143; S. v. Anderson, 222 N.C. 148, 22 S.E. 2d 271.
The inapplicability of the instruction, so plaintiff says, arises from the fact that she had no previous knowledge of the defective condition of the street; that she was warranted in acting on the assumption the authorities of the city had used ordinary care in the discharge of their duty to keep the sidewalk reasonably safe for pedestrian travel, Russell v. Monroe, 116 N.C. 720, 21 S.E. 550, and that hence she never was presented with the choice of using a safe or a dangerous way to pass the hole or depression in question. 25 Am. Jur.—Highways, Sec. 462.
It is conceded that plaintiff states a sound principle of law, applicable to the facts as outlined which she thinks is pertinent here, but which the defendants say is impertinent to the facts of the present record, because according to the plaintiff’s own testimony the hole or depression in the sidewalk was necessarily visible and apparent to any person exercising reasonable care and keeping a proper lookout. Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309; Rivers v. Wilson, ante, 272, 63 S.E. 2d 544. It is contended that a hole in the middle of an eight-foot concrete sidewalk 2% to 3 feet long, 2 feet wide, and 2% to 3 inches deep and differing in color from the pavement, could hardly be unnoticed by a pedestrian who was at all observant of the path ahead. Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424. If other pedestrians on the sidewalk mo
The conflicting contentions and theories of the parties arise from different interpretations and conceptions of the operative facts. Both positions are supported by seemingly permissible inferences from the record, with neither compellable as a matter of law, hence the case was properly submitted to the jury. Inferences of fact are for the twelve, not the court. The physical facts of a ease sometimes outweigh the testimony of some of the witnesses. Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88. There can be no debate over a fact once established. The witnesses may see or understand it differently, but this would not change the fact. It is this difference of opinion or different understanding of the witnesses which calls for the intervention of a jury to determine the fact in dispute. Here, the trial court regarded the evidence as sufficiently equivocal to require the aid of a jury to determine the exact facts of the case, and, therefore, he called in the twelve.
It would seem that the following doubtful queries or jury matters are presented by the record :
Was the hole or depression as deep and dangerous as plaintiff says?
Why did she not see it ?
If unsafe and clearly so, Was there an obviously safe passageway around it?
Where does the fault or blame lie ?
The jury has answered, attributing the injury to the negligence of both parties.' We cannot say there was error in the trial, or that the challenged instruction was harmful or prejudicial to the plaintiff’s cause.
On the record as presented, the verdict and judgment will be upheld.
No error.