Houston v. City of Monroe
197 S.E. 571
N.C.
1938
Check Treatment
Stacy, C. J.

The description of the place in the crosswalk where plaintiff fell, according to her own witnesses, ranges all the way from “an outline of unevenness” to a dip or depression, tin pan or saucer-shaped, 11 or 13 inches in diameter, 2% inches deep at the center, and it tapered out to nothing or “shallowed out towards the edge just like a bowl.” Plaintiff was familiar with the intersection. She knew the condition of the crosswalk, and could have seen the situation had she been looking, but she was not looking where she was going. She and her companions had passed over the intersection only a short time before. The defendant alleges in its answer that “a reasonable and ordinary inspection of the street would not have revealed the existence of the depression.”

In the circumstances thus disclosed by the record, we are constrained to hold that the demurrer to the evidence should have been sustained, if not upon the principal question of liability, then upon the ground of contributory negligence. Burns v. Charlotte, 210 N. C., 48, 185 S. E., 443. See Smith v. Sink, 211 N. C., 725, 192 S. E., 108. A city is not an insurer of the safety of its streets and crosswalks. Ferguson v. Asheville, ante, 569; Oliver v. Raleigh, 212 N. C., 465; Fitzgerald v. Concord, 140 N. C., 110, 52 S. E., 309.

The principle upon which the case rests is stated in 13 R. C. L., 398-399, as follows: “The existence of a hole or depression, or a material inequality or unevenness, or a gap in a sidewalk or crosswalk may constitute such negligence on the part of a municipality as will render it liable to pedestrians for injuries caused thereby. . . . But a municipality cannot be expected to maintain' the surface of its sidewalks free from all inequalities and from every possible obstruction to mere convenient travel, and slight inequalities or depressions or differences in grade, or a slight deviation from the original level of a walk due to the action of frost in the winter or spring, and other immaterial obstructions, or trivial defects which are not naturally dangerous, will not make a municipality liable for injuries occasioned thereby. The fact that *791 tbe surface of a walk may have become uneven from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. So it has been held that a municipality is not liable for injuries to a pedestrian resulting from slipping or stumbling over a niche left in a sidewalk around a growing tree, from which the tree has been removed, or over a piece of stone projecting slightly above the level of a crosswalk.”

The cases of Bell v. Raleigh, 212 N. C., 518; Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897; Doyle v. Charlotte, 210 N. C., 709, 188 S. E., 322; Sehorn v. Charlotte, 171 N. C., 540, 88 S. E., 782; Foster v. Tryon, 169 N. C., 182, 85 S. E., 211; Alexander v. Statesville, 165 N. C., 527, 81 S. E., 763; Neal v. Marion, 129 N. C., 345, 40 S. E., 116; Russell v. Monroe, 116 N. C., 720, 21 S. E., 550, cited and relied upon by plaintiff, are all distinguishable by reason of different fact situations. It would be supererogatory to point them out in detail. There is no debate as to the general principles applicable to the case. Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358. “A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence and take away the question of negligence and contributory negligence from the jury ”—Clarkson, J., in Moseley v. R. R., 197 N. C., 628, 150 S. E., 184. Nevertheless, when it appears from all the evidence that the plaintiff ought not to recover, it is the duty of the court to say so. Love v. Asheville, 210 N. C., 476, 187 S. E., 562; Powers v. Sternberg, ante, 41; Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211; Foy v. Winston, 135 N. C., 439, 47 S. E., 466; Pinnix v. Durham, 130 N. C., 360, 41 S. E., 932.

We are cited to the case of City of Richmond v. Rose, 127 Va., 772, 82 S. E., 561, as upholding a recovery on a similar state of facts, but an examination of the cited case discloses a fact situation more nearly parallel to that appearing in Absher v. Raleigh, supra. Much that is said by the Virginia Court in the Rose case, supra, if not all that is said in the valuable opinion rendered therein, is in full accord with our own decisions.

Plaintiff has sustained serious and permanent injuries as a result of her fall, but our conclusion is that the record fails to establish liability therefor on the part of the defendant.

Reversed.