88 S.E. 782 | N.C. | 1916
This action is to recover damages for negligence. (541) The plaintiff, a lady about 62 years of age, while walking on a street in Charlotte, stepped into a hole in the sidewalk, with the result that her knee-cap was fractured and permanently injured.
A cement sidewalk had been laid on this street extending to the curb, and the water meter was left within the surface of the cement sidewalk. The curb was moved further off, leaving some 6 or 7 feet of *608 grass plat between the curb and the cement sidewalk. The water meter was then taken out of the cement walk and its removal left a circular hole about three-fourths within the cement sidewalk, the hole being 16 to 18 inches in diameter and originally knee deep. It is admitted that the city itself moved the meter and left the hole there, and it is in evidence that it was partially filled up, but the earth was not tamped, and the plaintiff was injured by stepping therein.
The court charged as follows: "If the city caused this water meter to be removed and left in the sidewalk there a hole of 4 to 7 inches in depth and permitted that hole to stay there for the space of from six to twelve months, this would be negligence per se, and the defendant would be responsible to the plaintiff for such injuries as were directly caused by such negligence."
There was evidence of negligence to be left to the jury, but it was error to charge that this was negligence per se. In Foster v. Tryon,
In Smith v. Winston,
The measure of duty established by these authorities is that the streets shall be maintained in a reasonably safe condition, and whether the corporation has done so or not is a question of fact to be decided by a jury, and cannot be declared as matter of law. This is particularly *609 true under the evidence in this record, as Mr. Redwine, who described the hole in the sidewalk with more particularity than any other witness, and who said it was 4 or 5 inches deep, also said: "It did not look dangerous to me." If the judge can say it is negligence per se to leave a hole in the sidewalk 4 inches deep, as he has done in this case, can he say so as to a hole 3 inches deep, or 2 or 1? Where is the line to be drawn? It is safer and wiser to leave the conditions and circumstances to the jury.
Error.
Cited: Rollins v. Winston-Salem,