Before bringing an action for damages against tbe city of Charlotte, tbe following is necessary to be done, under tbe amended charter: “No action for damages against said city of any character whatever, to either person or property, shall be instituted against said city unless within six months after tbe happening or inflicting of tbe injury complained of, tbe complainant, bis executors or administrator, shall have given to tbe board of aldermen of said city notices of such injury in writing, stating in such notice tbe date and ■place of happening or infliction of such injury, tbe manner of such infliction, tbe character of tbe injury, and tbe amount of damages claimed therefor, but this shall not prevent any time of limitation prescribed by law from commencing to run at tbe date of happening or infliction of such injury or in any manner interfere with its running.” Private Laws 1911, chapter 251, section 15.
Tbe notice was filed in tbe "time limit and a'll requisites substantially complied with, except on tbe argument, it was contended tbat tbe details as to such injury “tbe manner of such infliction” was not sufficient, tbat in tbe pleading there were more allegations as to tbe “manner of such infliction” than set out in tbe notice. Tbe notice states: “Wbicb injuries were caused and produced by reason of tbe negligence of tbe city of Charlotte in permitting and maintaining a permanent obstruction in Seventh Street in said city, where tbe same crosses Little Sugar *659or Town Creek, wbicb obstruction consisted of a large concrete post or pillar, wbicb tbe said city built and permitted for a long time to remain entirely in tbe traveled way of said street beyond tbe curb line of tbe sidewalk. By reason of wbicb construction, plaintiff while riding an auto truck, being driven by a third party, has bis legs crushed, broken and mangled.”
“The provisions of the statute prescribing tbe terms and contents of tbe notice, such as tbe time and place of tbe accident, tbe nature of tbe injury, tbe defect in tbe street or highway, or tbe cause of tbe injury, must be substantially complied with; otherwise, tbe condition precedent to tbe right to maintain tbe action has not been performed and tbe action will not lie.” 4 Dillon on Municipal Corporations, p. 2819.
“Generally, tbe notice must set forth tbe time, place, cause, and character of tbe injuries sustained. But a substantial compliance with tbe statute is all that is required, and tbe notice need not be drawn with tbe technical nicety necessary in pleading.” McQuillan on Municipal Corporations (Yol. YI), section 2718.
We think tbe statute was substantially complied with. Tbe notice was sufficient to tbe governing body of tbe city, wbicb bad ample notice of tbe cause of tbe injury, and there was nothing to mislead them as to tbe basis of tbe action.
On all tbe evidence, taken in a light most favorable to plaintiff, is be entitled to recover in this case? We are of tbe opinion that be can.
Tbe defendant states: “In this appeal, as advancing a single proposition, that under well-settled principles of law tbe plaintiff’s own evidence shows that this is not a ease of liability. They are not seeking a new trial. No error is assigned in tbe admission or rejection of evidence, and none 'in tbe charge of tbe court.”
For a better understanding of the contentions of tbe parties, we will have to make repetition of tbe salient facts as we conceive them to be on tbe record, so as to apply tbe law to tbe facts.
Tbe plaintiff was permanently injured on tbe night of 11 July, 1919, about 11 o’clock, while on a “straw ride” with a party of about 16 young people. Sloan (S. S.) Sherrill was driving tbe truck. Tbe upright sides of tbe truck were taken off and automobile cushions were placed around tbe sides to sit on. As they sat on tbe cushions on tbe side of tbe truck their feet bung over tbe sides of tbe truck. Sloan Sherrill and Miss Laura Alexander were riding in tbe closed cab of tbe truck, Sherrill was sitting on tbe left side of tbe cab coming into tbe city on East Seventh Street, and Miss Alexander was sitting on tbe right. Tbe truck was coming into Charlotte on East Seventh Street. Tbe plaintiff was riding on tbe right-hand side of tbe truck. He was tbe first one on that side, immediately behind tbe cab, sitting on tbe side of tbe truck *660with bis feet banging down over tbe side of tbe truck. Tbe side of tbe truck extended over tbe wheels 6 or 8 inches on each side. Tbe bed of tbe truck was 6 feet 1 inch wide, tbe truck was 11 feet and 6 or 8 inches long. Sherrill was driving about 15 or 18 miles an hour, and bad had 15 years experience running trucks. It was tbe first time be bad driven this truck; it was a new truck. It bad kerosene lights, located at tbe end of tbe cab, standard lights for trucks, and gave light enough for careful driving on country roads. He bad no license to operate a truck. It was dark; tbe moon bad gone down. Tbe nearest street light east of tbe bridge was 565 feet, and from tbe .westerly post of tbe bridge was 162 feet.
Tbe place where tbe injury occurred was on Seventh Street bridge, on tbe right-band side of .the bridge as tbe city is approached from tbe east. On tbe bridge there are four concrete posts and two concrete railings. From tbe outside line of tbe easterly post to tbe outside line of the westerly post is 31.8 feet. Tbe pilasters, or posts, are all square and of tbe same dimensions, and tbe width as it fronts on tbe street is 1.6 feet. Tbe two rails between tbe posts are about a foot wide, and the posts and railings are constructed of concrete, sand and gravel, kind of brown-color. Tbe concrete posts and foundations jut out into the street beyond tbe curb line, that is the fixed or marked line that separates the sidewalk for pedestrians’ travel from the street or vehicle travel. Tbe easterly posts and foundation juts, or extends, out into the traveled street 1 foot and 3 inches, the westerly post and foundation 2 feet. Tbe street at the bridge is about 38.4 feet wide, with double track for street cars. From tbe right-band track, or tbe northerly side of tbe right-band car line coming into Charlotte, to the westerly post on tbe bridge on tbe right-hand side as you come into Charlotte, there is a'space of about 10 feet. Tbe street bad a hole in it 8 or 10 inches wide about a foot or two feet long and about 1% or 2 inches deep. Tbe truck was going along East Seventh Street on tbe right side of the street, down grade towards tbe bridge. Tbe first post that tbe truck bad to pass jutted out into the'street 1 foot and 3 inches and the last it bad to pass, as tbe truck was going west, tbe fourth post, jutted out into tbe street 2 feet. To tbe left of the truck was a double car-line track, tbe hole was opposite tbe posts that jutted out into tbe street. Tbe sidewalks on either side were raised some 4 to 6 inches above tbe level of tbe street between the curbs. Sherrill said: “As I was driving along, I was just using tbe ordinary precautions of driving, watching the road and seeing if there were any rough places, to get out of them. I was looking ahead. It was rough. Tbe street had a bole in it, and I turned to miss it. I can’t say exactly what tbe dimensions of tbe bole were. I would say 8 or 10 inches wide, about a foot or two feet long, and 1% or 2 inches deep. *661When I saw that bole I swerved to the right; I don’t think it was but very little. I can’t say whether I missed the hole. At the time I did not discover that any part of the car had struck the westerly pilaster or post. Somebody hollered to me to stop.” No other vehicle was in sight.
Dr. Jas. R. Alexander testified: “As you get down to the bridge there was a large hole in the right-hand track. It extended from track to track, about 3 feet long and 4 or 5 inches deep; along by the ear track was a small hole; there were some other holes right near the car track and some near the cement. There were also holes in the bitulithic. The holes in the north side of the track were right by the cement. There was one that I would call a hole, then a sink for draining the water.”
The positions taken by the defendant in its brief are: “(1) The matters complained of rested in the discretion of the city officials and cannot be made the basis of an action; (2) the barrier was not such a defect of construction as to render the city liable for failure to remove.”
What is the legislative power given to the city of Charlotte in reference to streets? Under “Municipal Corporations” we have C. S., sec. 2675, which is as follows: “The board of commissioners shall provide for keeping in proper repair the streets and bridges in the town, in the manner and to the extent they may deem best; may cause such improvements in the town to be made as may be necessary,” etc.
“The board of commissioners may pass laws,for abating or preventing nuisances of any kind and for preserving the health of the citizens.” C. S., 2676.
Private Laws of 1907, ch. 342, sec. 133, amended charter of city of Charlotte, is as follows: “That said board of public service shall have full power and authority, under the ordinances of the board of aider-men, to grade, pave, macadamize, and otherwise permanently improve for travel and drainage any street, sidewalk and public alley of said city; to put down curbing, cross drains and crossings on the same; to lay out and open any streets, or widen those already open, and make such improvements thereon as the public convenience may require.” This power was transferred by legislative enactments to an executive board to consist of five, and is now under authority of the governing-body of the city of Charlotte, consisting of three officials..
’ The defendant contends that its only duty under the statute is to repair, and it is not liable for methods of construction, as the city officials must exercise their judgment and discretion. The power given by the law relating to the city is in the general State law above to “provide for keeping in proper repair the streets . . . may cause such improvements in the town to be made as may be necessary.” In the special act above “permanently improve for travel and drainage any *662street, ... to put down curbing,” etc. Under tbe above law it is tbe duty of tbe city to “repair,” to make necessary “improvements,” “permanently improve for travel,” etc. Tbe duty imposed by tbe statutes, in clear inference, is to botb construct and refair. Tbe city bas tbe right to put down curbing, open streets, widen those opened, and nowhere in tbe above statute does it permit obstructions.
Black in bis Law Dictionary defines tbe word “improvement” a valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value and utility or to adopt it for new or further purposes.
In tbe instant case tbe heavy obstructions jutted out into tbe street beyond tbe curb line on tbe east side one foot and three inches and on tbe west side two feet. Nowhere in tbe acts is discretionary power given to tbe city to put obstructions in tbe street — power is given to “put down curbing,” etc. Tbe contention of defendant is not borne out by tbe meaning and language of tbe legislative power given.
In Dillon v. Raleigh, 124 N. C., 184, tbe North Carolina Railroad, with knowledge of tbe city of Raleigh, “was permitted to enter tbe corporate limits of defendant city and to cross its streets, and it did cross said street about fifteen feet above tbe level of tbe street. Tbe railroad runs diagonally across tbe street, and its stringers are supported by four sets of upright posts or benches standing in tbe street. These benches are ten or twelve feet long and about twelve feet apart. They stand at right angles with tbe railroad stringers and form an acute angle of forty-five degrees with tbe direct course of tbe street. Tbe plaintiff, with another lady, was driving a gentle horse along said street in tbe direction of tbe railroad crossing, when suddenly tbe horse became frightened, without any known cause, and dashed through said benches, and tbe buggy struck tbe far-off corner of one of them, and tbe injury complained of was tbe result.” Faircloth, C. J., said: “Tbe main question presented to this Court is, Ts tbe city defendant liable in damages to tbe plaintiff for alleged injury?’ In some jurisdictions liability in such cases is implied at common law, but in many of tbe different States, perhaps in all, we find tbe matter regulated by special or general statutory provisions. In our State, Tbe Code, sec. 3803 (now C. S., 2675) enacts that tbe commissioners of towns and cities ‘shall provide for keeping in proper repair tbe streets and bridges in tbe town, in tbe manner and to tbe extent they may deem best,’ etc. And section 3802 (now 2676) says ‘They may pass laws for abating or preventing nuisances of any kind, and for preserving tbe health of tbe citizens.’ Tbe duty and powder of tbe municipality thus apxoear to be ample and complete. If any person shall .unlawfully erect an obstruction or nuisance *663in the streets of a city, and the town authorities shall permit it to remain an unreasonable length of time, the town and the tort-feasor are jointly and severally liable to the traveler for an injury resulting therefrom, without any fault on his part. The question of primary and secondary liability is for the offending parties to adjust between themselves. The injured party shall have his remedy against either, as they fall under the rule as to joint tort-feasors. Eurwell on Personal Injuries, sec. 190.”
"Entire highway belongs to public — Purpresture—Nuisance per se.
“Public highways belong, from side to side and end to end, to the public, and any permanent structure or purpresture which materially encroaches upon a public street and impedes travel is a nuisance per se, and may be abated, notwithstanding space is left for the passage of the public. This is the only safe rule, for if one person can permanently use a highway for his own private purposes, so may all, and if it were left to the jury to determine in every case how far such an obstruction might encroach upon the way without being a nuisance, there would be no certainty in the law, and what was at first a matter of small consequence would soon become a burden not only to adjoining owners, but to all the taxpayers and the traveling public as well. Thus expediency forbids any other rule. But even if it did not, the rule is well founded in principle, for it is well settled that the public is entitled not only to a free passage along the highway, but to a free passage along any portion of it not in actual use of some other traveler.” Elliott on Eoads and Streets, 2d YoL, sec. 828.
The city authorities of Charlotte, under its charter and C. S., 2675, supra, are given discretionary power to lay out and open streets, widen those opened, improve them as the public convenience may require, to grade, pave, drain, macadamize and otherwise permanently improve for travel any of the streets, and to put down curbing. The governing body of the city, in carrying out this discretion, cannot, when they improve the streets and construct the bridges and drains, fix the curb, lines, leave an obstruction or nuisance which materially encroaches on the travel way. The general public is entitled to the entire way unobstructed. This does not mean that in opening the streets or improving them in their discretion they cannot make necessary center plots or parks, but when this is done, and the curb lines established, the' way for travel must be left in a condition that is reasonably safe, so as not to unnecessarily endanger or impede travel. At common law any unnecessary or unauthorized obstruction that unreasonably incommodes or impedes the lawful use of a street or highway is a nuisance. These traveled ways must be made and kept in repair and made reasonably safe and convenient for the public. In the present day this duty is more incumbent, *664as the highways and streets are now used for quicker travel by truck and automobile, and obstructions are necessarily more dangerous.
¥e think the position taken here is borne out by a long line of decisions in this State. Bunch v. Edenton, 90 N. C., 431; Russell v. Monroe, 116 N. C., 720; Fitzgerald v. Concord, 140 N. C., 112; Brown v. Durham, 141 N. C., 252; White v. New Bern, 146 N. C., 449; Bevis v. Raleigh, 150 N. C., 353; Johnson v. Raleigh, 156 N. C., 271; Bailey v. Winston, 157 N. C., 252; Styron v. R. R., 161 N. C., 78; Darden v. Plymouth, 166 N. C., 492; Bell v. Greensboro, 170 N. C., 179; Sehorn v. Charlotte, 171 N. C., 541; Dowell v. Raleigh, 173 N. C., 202; Ridge v. High Point, 176 N. C., 421; Bailey v. Asheville, 180 N. C., 645.
As was said by Hoke, J., in Fitzgerald v. Concord, supra: “The town, however, is not held to warrant that the condition of its streets, etc., shall be at all times absolutely safe. It is only responsible for negligent breach of duty, and, to establish such responsibility, it is not sufficient to 'show that a defect existed and an injury has been caused thereby. It must be further shown that the officers of the town 'knew or by ordinary diligence might have discovered, the defect, and the character of the defect was such that injuries to travelers therefrom .might reasonably be anticipated.’ ”
The defendant contends that the present case is analogous to the Bol-lins and Sandlin cases. We do not think that the facts and law, as set forth in the case of Rollins v. Winston-Salem, 176 N. C., 411, are in conflict with the position taken in the instant case. In that case, a water hydrant — something for the protection of all the inhabitants of the city — a public necessity, with nowhere else convenient to be located, was not put on the traveled street-way for vehicles, but the “evidence discloses that this hydrant, like other hydrants in this city, was placed in the edge of the sidewalk next to the curb and just far enough from the curb so that the part of the hydrant to which the hose was to be attached would clear the driveway.” The sidewalk at this point is some 7 or 8 feet wide and is paved from property line to curb with concrete. The hydrant was 8% inches thick and the side of the hydrant farthest from the outside of the curb was 15% inches. A space of 6 to 7 feet of sidewalk was left for pedestrians. It was also in evidence that at Peterson Avenue, 316 feet away, and at White Street, 468 feet away, there was a high-power electric light. There was evidence that the injury was at night and on account of the presence of a tree near the hydrant and the distance from the street lights it was dark. Allen, J., in that case said: “Persons using the sidewalk are required to take notice of these conditions and of the uses to which the sidewalks may legitimately be put. They 'must take notice of such structure as the necessities of commerce or the convenient occupations of dwelling-houses’ require. Russell v. Monroe. 116 N. C.. 727.”
*665We do not think the position taken by this Court in Sandlin v. Wilmington, 185 N. C., 257, is in conflict with the case at bar. That case holds “A municipal corporation is not authorized^ to maintain a nuisance (defective sewer causing vile and sickening odors), and an action will lie against it for damages to property resulting therefrom, regarded and dealt with as an appropriation of .the property to the extent of the injury that he has. thereby received.” Injury to health not allowed in that line of cases are distinguishable from the instant case.
The most serious contention of the defendant is found in its third reason why the plaintiff should not recover :
“The plaintiff’s own evidence shows him guilty of such contributory negligence as to bar his recovery. It is admitted that the plaintiff was riding with his feet and legs hanging over the side of the truck. It is also conceded that the following ordinance was in effect in the city of Charlotte:
“ 'That no one shall ride or jump onto any vehicle without the consent of the driver thereof; and no person, when riding, shall allow any part of his body to protrude beyond the limits of the vehicle, nor shall any person hang onto any vehicle whatsoever.’ ”
The bed of the truck, which extends further out than the fender, struck the heavy post, and the first person sitting on that side was the plaintiff and he was. crushed. His foot was practically cut off, he lost a limb, and, from the evidence, is a cripple for life. The upper post that he was crushed against is nearly a foot further out from the curb line into the street than the first post that juts out one foot and three inches into the street beyond the curb line, which the truck first passed on its way going west. Under all these facts and circumstances in this case, under proper instructions to the jury by the court below, and there being no exceptions to same (the instructions are taken to be without error), the jury found that the plaintiff was injured.by the negligence of the defendant, and that the plaintiff, by his own negligence, did not contribute to his injuries. Conceding that Sherrill, the driver of the truck, was negligent, which the evidence does not show, it has been repeatedly held by this Court, and stated as a general rule, “that the negligence of the driver of an automobile will not be imputed to one who is a passenger therein, unless .such passenger be the owner of the car, or unless he exercise some kind of control or authority over the driver.” White v. Realty Co., 182 N. C., 538, and cases cited.
The facts disclosed in this case show that Sherrill was driving the truck; the plaintiff was a passenger; that Sherrill was driving within the speed limit allowed by law and about 11 o’clock at night, for the lack of lights at the obstructions, it was dark, the moon had gone down. One city light was 565 feet away, the other 162 feet away. He could *666not see tbe posts or obstructions on the bridge. He was coming along East Seventh Street, down hill, towards the city to cross the bridge where the heavy obstructions were located. Could not see the posts or pilasters, did not know they extended into the traveled way of the street beyond the curb line. The way he was going the first post was one foot and three inches in the street -and the last one was two feet. He passed the first and hit the last one furthest into the traveled way. He was driving on the right-hand side of the road, the way the law required. The posts were kind of brown color. Two car tracks extended across the bridge. Hole in the street between the car tracks on the east side of the bridge. As you get down to bridge, large hole in right-hand track, extended from track to track, 3 feet long and 4 or 5 inches deep, also alongside track a small hole, other holes and a sink for draining the water. These holes were on the traveled way of Sherrill near the posts or pilasters of the bridge. As he drove over the bridge, Sherrill turned to miss the hole and the truck struck the westerly post or pilaster.
The defendant contends that, as a matter of law, the plaintiff was violating a valid town ordinance — “No person, when riding, shall allow any part of his body to protrude beyond the limits of any vehicle”; that this made the plaintiff guilty of negligence per se, and. he could not recover. The plaintiff says if that be true, it is for the jury, under all the facts and circumstances, to say if this violation of the ordinance was the proximate cause of the injury.
We think the position taken by Brown, J., in Taylor v. Stewart, 172 N. C., 204, is the correct one: “The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile belonging to the defendant J. W. Stewart. At the time the car was being-operated by James Stewart, the son of said J. W. Stewart, a lad of thirteen years of age. A colored chauffeur, who had been sent out with the car by the own,er, was sitting beside the lad. His Honor charged the jury that under the law of North Carolina it was a misdemeanor for a person under the age of sixteen to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his Honor erred. He. should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the State. Zageir v. Southern Express Co., 171 N. C., 692; Paul v. R. R., 170 N. C., 231; Ledbetter v. English, 166 N. C., 125. It does not follow, however, that the defendant is liable in damages, for the plaintiff must go further and satisfy the jury by a preponderance of the evidence of the fact that such negligence was the proximate cause of the death of the child. This *667question of proximate cause bas been mucb debated, and a very belpful and enlightening opinion upon the subject bas been written by Mr. Justice Allen in Paul v. R. R., sufra. Where the facts are all admitted, and only one inference may be drawn from them, the Court will declare whether an act was the proximate cause of the injury or not. But that is rarely the case, and, as is said by Mr. Justice Strong in R. R. v. Kellogg, 94 U. S., 469: What is proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it.’ ”
“The mere fact that the speed of an automobile exceeded that allowed by chapter 107, Laws 1913, at the time of collision with a railroad train at a public crossing, does not of itself prevent a recovery by the owner, where there is evidence of negligence on the part of the railroad, because it would, among other things, withdraw the question of proximate cause from the jury.” Shepard v. R. R., 169 N. C., 239.
“Where the owner of an automobile is driving her car upon the streets of a city in .violation of- an ordinance requiring a license, and the machine is injured by the backing of an express wagon onto the street in such negligent manner as to damage the car, without contributory negligence on the owner’s part and which the care of a skillful chauffeur would not have avoided, it is held, that the violation of the ordinance will not bar the plaintiff of recovery in her action for damages, there being no causal connection between the unlawful.act and the damages sustained.” Zageir v. Express Co., 171 N. C., 692.
“Where a railroad company has provided a gate at a public street crossing of a town to be let down for the protection of vehicles, etc., from passing trains, and it has been shown that the employee in charge has negligently let down his gate in front of an automobile too suddenly for the driver and owner to stop, and has caused him to deflect his course to the damage of the machine and his own injury, without negligence on his part, the fact that the driver was at the time exceeding the statutory speed limit, and was therefore guilty of a misdemeanor, does not alone bar his recovery, such being dependent upon the question as to whether his act was the proximate cause of the injury. Lloyd v. R. R., 151 N. C., 536, where the statute itself is made the basis of the injury, cited and distinguished.” Hinton v. R. R., 172 N. C., 587.
Defendant had abundant notice of the obstruction. The obstruction jutting out into the travel-way was called to the attention of the proper officials of the city of Charlotte at the time the street was being improved. They were allowed to remain after notice. The obstructions jutting out into the travel-way from the curb line was in itself notice.
From a careful review of the entire record, we can find
No error.