Russell v. . MonroeRussell v. . Monroe
- Reporters:
- , ,
- Before:
- Avery
The law imposes upon the mayor and commissioners of incorporated towns the imperative duty of “keeping in proper repair the streets and bridges of the town” (
If the plaintiff was exercising reasonable or ordinary care of her own safety when she fell into the ditch she had a right to demand that the jury respond in the negative to the second issue. Jones Neg. Mun. Corp., sec. 221; Bunch v. Edenton, supra. The evidence is that the plaintiff had never actually noticed “the hole before” though she admits that she might possibly have seen it if she had been paying strict attention to her pathway when she fell. She had a right to expect and to act on the assumption that the authorities of the town had properly discharged their duty by keeping the streets in good repair. Bunch v. Edenton, supra, at page 435; Morrill on City Negligence, pp. 136, 137, 139; Indianapolis v. Gaston, 58 Ind. 224. Perhaps the only exception to this rule is the reasonable requirement that persons must take notice of such structures as the necessities of commerce or the convenient occupation of dwelling houses, such as exterior basement stairs. Bueschung v. St. Louis, etc., 6 Mo., Ap., 85. Walker v. Reidsville, 96 N.C. 382, is distinguishable from that at bar because there the pit into which the plaintiff fell was some distance from the sidewalk (56 feet) though it was excavated by the town and upon property owned by it, and the plaintiff had actual notice of its (728) existence.
The burden was on the defendant under our statute to prove contributory negligence, and in order to thus avoid the consequences of its own carelessness it was necessary to show that the plaintiff failed to exercise reasonable or ordinary care for her own safety. If she did not put herself in fault by careless conduct, she had a right to demand that the jury be instructed to answer the second issue in the negative. Jones, supra, sec. 221. To constitute contributory negligence (says Beach in his work on that subject, section 8) there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the injury. Perhaps, besides these two, there are no other necessary elements. Certainly they are the two points of difficulty in the question. “Did the plaintiff exercise ordinary care under the circumstances? Was there a proximate connection between
As a specific act or omission may be declared negligence at a particular period or under given circumstances, which had been held with other surroundings not culpable at all, so it will be found that (729) the question whether a plaintiff has contributed by his own carelessness to bring about an injury complained of, must be answered after a comprehensive consideration of the conditions confronting him at the time. It was unquestionably error to tell the jury that the plaintiff was required, in order to rid herself of culpability, to exercise under any circumstances more than ordinary care. While the rule of the prudent man is always the test of carelessness on the part of a plaintiff, what is reasonable care does not depend alone upon what a person does or omits to do, but also upon his environments at the moment, when it is contended that his act or omission enhanced his danger. While the rule that a person in order to avoid culpability must exercise such care as a man of ordinary prudence would under similar circumstances use, is always the criterion for testing contributory negligence, as well as negligence, the conditions at the moment may render the same act, at one time, characteristic of a cautious, at another, of a careless man.
We do not understand the rule to be that where a defendant has by carelessness left the plaintiff exposed to peril as a natural consequence of its conduct, the failure of the plaintiff to exercise unusual caution to avoid the ensuing danger will be deemed the proximate cause of an injury that would not have been sustained had the defendant in the first instance been faultless. The plaintiff was not bound to exercise more than ordinary care, because she might possibly, before or at the time of sustaining the injury, have thereby discovered that the defendant had carelessly left persons, passing along the sidewalk at the particular place, exposed to danger. A defendant cannot take advantage of his own wrong to hold others to a more rigid rule of watchfulness. The plaintiff was warranted in acting on the assumption that the authorities of the town had done their duty. She was
There was error in instructing the jury that the plaintiff was expected to use more than ordinary care. The court should have told them that she was entitled to recovery if the first issue was found in her favor, unless the defendant had shown by preponderance of the testimony that she did not exercise reasonable or ordinary care.
We think that the case, as the facts were developed on the trial, was governed by the principle laid down in Bunch v. (731)Edenton, supra, and that it was not shown that the injury was due to her own negligence. There was error and the plaintiff is entitled to a
New Trial.
Cited: Tankard v. R. R., 117 N.C. 561; Thompson v. Winston, 118 N.C. 666; Willis v. New Bern, ib., 136; Little v. R. R., ib., 1078; Tillett v. R. R., ib., 1045; Sheldon v. Asheville, 119 N.C. 609; McCracken v. Smathers, ib., 619; Dillon v. Raleigh, 124 N.C. 189; Jones v. Greensboro, ib., 312; Neal v. Marion, 126 N.C. 416; Cresler v. Asheville, 134 N.C. 311; Hester v. Traction Co., 138 N.C. 291; Fitzgerald v. Concord, 140 N.C. 112; Kinsey v. Kinston, 145 N.C. 108; Edwards v. Raleigh, 150 N.C. 280; Harvell v. Lumber Co.,