During the trial plaintiff asked leave of the court to amend the complaint in order to set up section 109 of the ordinances of the city, and that the city negligently failed to comply with said ordinances, and that such negligence was the proximate cause of his injury. The plaintiff offered in evidence section 109 of the ordinance of defendant city, which is as follows: “It shall be unlawful for any person to make any excavation or do any work which may create or cause a dangerous condition in or on or near any street, alley, sidewalk or public place of the city without placing and maintaining proper guard rails and signal lights, or other warnings, at, in or around the same sufficient to warn the public of such excavation or work, and to protect all persons using reasonable care from injuries on account of same.”
The court refused to permit the amendment upon the ground that “said ordinance has no application to this case.”
The plaintiff also offered the testimony of expert witnesses tending to show that approved barricades and such as were in general use in excavation work were constructed by the use of a buck and a plank, said bucks being placed from twelve to sixteen feet apart. Plaintiff also attempted to offer evidence as to the customary methods of barricading ditches upon streets during excavation. All of this evidence was excluded by the trial judge, and the defendant assigns the ruling of the court as error.
*682The ordinance, upon its face, was designed “to warn tbe public of such excavation or work and to protect all persons using reasonable care from injuries on account of same”; and as tbe plaintiff was not injured by reason of tbe excavation, it is apparent that tbe ruling excluding tbe ordinance from tbe evidence was correct. In other words, if tbe plaintiff bad fallen into tbe ditcb or bad been injured by reason of tbe excavation', perhaps tbe ordinance would have been pertinent. Moreover, “general statutes do not bind tbe sovereign unless specifically mentioned in them.” O’B'erry v. Mecklenburg County, 198 N. C., 357; Guilford County v. Georgia Co., 112 N. C., 34.
Indeed, tbe evidence discloses that tbe injury was solely attributable to tbe fact that a garbage truck in some unaccountable way became engaged with tbe rope barrier, jerking it from its position and injuring plaintiff. Foreseeability of injury is still an element of proximate cause. Tbis idea was compactly expressed by Connor, J., in Fore v. Geary, 191 N. C., 90, as follows: “No man, by tbe exercise of reasonable care, however high and rigid tbe standard of such care, upon tbe facts in any particular case, can foresee or forestall tbe inevitable accidents, and contingencies which happen and occur daily, some bringing sorrow and loss, and some bringing joy and profit, all however contributing, in part, to make up the sum total of acts, which they can and should foresee and by reasonable care and prudence, provide for.” Gant v. Gant, 197 N. C., 164. Tbe same reasoning which excludes tbe application of tbe ordinance also excludes tbe evidence as to proper construction of barricades or usage and custom relating thereto, because tbe plaintiff was not injured by tbe barricade alone, but by reason of tbe independent agency of tbe garbage truck.
There is allegation in tbe complaint to tbe effect that tbe garbage truck was negligently operated, but tbe question'of legal liability of a city for the negligent operation of a garbage truck engaged in tbe charitable enterprise of hauling wood to a poor person, is not discussed in tbe brief of appellant. See Scales ni. Winston-Salem, 189 N. C., 469; Wood v. Boone County, 133 N. W., 377; Ann. Cas., 193 (D), 1070; Johnston v. City of Chicago, 101 N. W., 960; Gaetjens v. City of N. Y., 116 N. Y. S., 759; Scibilia v. Philadelphia, 124 Atlantic, 273; 32 A. L. R., 981; Cowans v. North Carolina Baptist Hospitals, 197 N. C., 41.
Affirmed.