91 S.E. 849 | N.C. | 1917
The judge instructed the jury in part as follows: "You will exclude from your consideration any and all testimony as to the condition of South Street or any part of it other than the place where it is admitted that the wagon fell, for, notwithstanding that the street may have been in bad condition elsewhere and that the defendant may have been negligent as to the condition elsewhere, that would not make the defendant *247 liable to the plaintiff in this case. So your inquiry will be, first, What was the condition of the street immediately at the point at which the wagon fell? Were there defects in the street? Were these defects such as to render passage over the street unsafe?" In this connection it may be stated that there was evidence that South Street was in worse condition at other places than it was at the place where the intestate's injuries were received.
The jury answered the first issue "No," that is, that there was no negligence. Judgment was entered for the defendant, and plaintiff appealed. after stating the case: There are two question to (199) be considered in this case:
1. As to the condition of the street at places other than the one where the accident occurred. The court admitted the proof, or rather it seems to have been let in without any objection. It may be that in its present form it was not competent, as it extends to the entire length of the street and is not restricted to that part of it near the place where the intestate was killed. We find this stated in one of the authorities: "For the purpose of proving or disproving negligence with respect to the particular defect or obstruction which caused the injury, evidence of similar defects, obstruction, or conditions existing at other places, or of like conditions, obstructions, or methods in other cities, is ordinarily inadmissible. But evidence of similar defects, obstructions, or conditions in the immediate vicinity under like conditions is admissible as tending to show the existence of the particular defect or obstruction, or to fix constructive notice thereof on the municipality. Thus such evidence is generally held admissible where the accident or injury occurs on a sidewalk of uniform construction and material for considerable length, and the other defects or condition offered in evidence were in the same walk and vicinity." Nor does it appear to what extent the other portions of the street were defective, nor whether the alleged defects were near to or remote from the one in question. We need not pass upon the admissibility of this evidence, because there was no objection to it, and, therefore, express no opinion in regard to it. But plaintiff excepted to the instruction of the court relating to it, and we must ascertain if the benefit of it was taken away from him by the charge. The learned judge was right in stating that a defect at any other place in the street would not create a liability unless they found that by reason of defendant's *248 negligence there was a defect at the place where intestate was thrown from the wagon, and that his death was proximately caused by it; but the language of the court went beyond this, as we think, and excluded the evidence from the consideration of the jury. It is likely that it was not so intended, but that is the fair construction of it.
2. The declaration of the intestate as to the condition of the wagon was incompetent. It was not a declaration against interest, as at that time he had no interest to serve or disserve. He had no cause of action himself, as his death was instantaneous, nor did he even have any interest in this cause of action. It is one not known to the common law, but created by the statute, and the beneficiaries take, not by any inheritance or succession from him, but solely because they are named in the statute as the recipients of the fund recovered for the death caused by the defendant's negligent or wrongful act. The cause of action (200) never arose until the death of the intestate, and then not to him, but to those who are designated by the statute to take the fund recovered. They acquire their right by the statute alone, and not because of any privity with the intestate, for none such exists between them, in any proper sense of that term. This is well settled by our decisions. Banker v. R. R.,
We conclude, therefore, that the court should not have admitted the declaration against plaintiff's objection.
But the city cannot be held liable unless it had or should have had notice of the defect, if one existed. "The governing authorities of a town are charged with the duty of keeping their streets and sidewalks, drains, culverts, etc., in a reasonably safe condition; and their duty *251
does not end at all with putting them in a safe and sound condition originally, but they are required to keep them so to the extent that this can be accomplished by proper and reasonable care and continuing supervision. Code, sec. 3803; Bunch v. Edenton,
Before a case of actionable negligence is made out, the jury must find, that there was a dangerous defect in the street; that it was there by reason of defendant's negligence, or its failure to repair, after actual or constructive notice of it; that it — and not the defective wagon, if the latter was defective — was the proximate cause of the intestate's death, the burden being on the plaintiff to show negligence and on the defendant as to any contributory negligence.
There will be a new trial for the error above indicated.
New trial.
Cited: Tyree v. Tudor,