Absher v. City of Raleigh, 211 N.C. 567 (1937)

April 28, 1937 · Supreme Court of North Carolina

211 N.C. 567

KATE F. ABSHER v. CITY OF RALEIGH.

(Filed 28 April, 1937.)

1. Municipal Corporations § 14 — Evidence held to require submission of issue of contributory negligence in this action for fall on sidewalk.

In this action against a municipality to recover for injuries sustained by plaintiff in a fall caused by a defective condition in a sidewalk, defendant elicited on cross-examination of plaintiff’s witnesses evidence that the defect could be seen from the street while riding in an automobile, and that a person could step over the defective place. Plaintiff introduced evidence that the defect could not have been seen by her in the dark. Held: The evidence was sufficiently equivocal and contradictory to require the submission of an issue of contributory negligence to the jury.

2. Negligence § 19b—

The issue of contributory negligence must be submitted to the jury if there is more than a scintilla of evidence on the issue.

3. Negligence § 11—

Contributory negligence, e® vi termini, implies that it need not be the sole proximate cause of the injury, and bars recovery if it concurs with •the negligence of defendant in proximately causing the injury.

4. Appeal and Error § 46—

Where a new trial is awarded on one exception, other exceptions relating to matters no't likely to arise on a subsequent hearing need not be considered.

Appeal by defendant from Small, J., at November Term, 1936, of Wake.

Civil action to recover damages for personal injuries sustained by plaintiff when she fell on one of tbe public streets of tbe city of Raleigb, due to tbe defective condition of tbe sidewalk.

Tbe record discloses tbat on tbe nigbt of 22 October, 1935, tbe plaintiff was walking along tbe cement sidewalk on tbe west side of Grlenwood Avenue, city of Raleigb, wben “one of ber feet suddenly caugbt under a section of tbe concrete sidewalk tbat was several inches higher than tbe other section thereof,” by reason of which tbe plaintiff was thrown to tbe ground and severely injured, ber right arm being broken or fractured.

Tbe defendant denied all allegations of negligence, pleaded contributory negligence, alleging tbat plaintiff failed to exercise reasonable care for ber own safety, and elicited from plaintiff’s witnesses tbe following on cross-examination: (1) C. H. Rogers, “You can see tbe broken place while riding in an automobile along Grlenwood Avenue if a person looked. for it.” (2) Elizabeth Coppedge, “We skated over it. . . . It was easy to step over if you were sure of your footing.” (3) Mrs. Hunter, “I was always careful wben I passed it. I didn’t stop to look at it.”

There was evidence on behalf of tbe plaintiff tending to show tbat sbe could not see tbe defective condition of tbe sidewalk in tbe dark.

Tbe court declined to submit an issue of contributory negligence. Exception by defendant.

Tbe defendant, also, assigns error in tbat plaintiff’s physician was allowed to demonstrate certain testimony upon tbe person of tbe plaintiff by manipulating ber arm and elbow in tbe presence of tbe jury, causing demonstrations of pain and suffering by tbe plaintiff, and permitting tbe witness to comment on said demonstrations.

Tbe jury answered tbe issue of negligence in favor of tbe plaintiff, and assessed ber damages at $7,500. From judgment on tbe verdict, tbe defendant appeals, assigning errors.

Douglass & Douglass for plaintiff, appell.ee.

Clem B. Holding for defendant, appellant.

Stacy, O. J.

The evidence on the issue of contributory negligence is not all one way. It is sufficiently equivocal and contradictory to require its submission to the jury. Doyle v. Charlotte, 210 N. C., 709; Williams v. Bus Co., ibid., 400, 186 S. E., 482; Oldham v. R. R., ibid., 642. Compare Casque v. Asheville, 207 N. C., 821, 178 S. E., 848. “A serious and troublesome question is continually arising as to bow far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence and take away tbe question of negligence and contributory negligence from tbe jury. Tbe right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for tbe jury and not tbe court”- —Clarkson, J., in Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.

The plaintiff’s negligence, in order to bar a recovery, need not be the sole or exclusive proximate cause of the injury, for this would exclude any idea of negligence on the part of the defendant. Mangum v. Winstead, 202 N. C., 252, 162 S. E., 557; Smith v. R. R., 200 N. C., 177, 156 S. E., 508; Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488; Lunsford v. Mfg. Co., 196 N. C., 510, 146 S. E., 129. It is enough if it contribute to the injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564; Const. Co. v. R. R., 184 N. C., 179, 113 S. E., 672. the very term “contributory negligence” ex vi termini implies that it need not be the sole cause of the injury. Fulcher v. Lbr. Co., 191 N. C., 408, 132 S. E., 9. Plaintiff may not recover when bis negligence concurs with that of the defendant in proximately producing the injury. Wright v. Grocery Co., supra, and cases there cited.

There are other exceptions appearing on the record worthy of consideration, especially those addressed to the demonstrative testimony of plaintiff’s physician, which is in excess of the matters considered in Fleming v. Holleman, 190 N. C., 449, 130 S. E., 171, and is disapproved elsewhere, 26 R. C. L., 1019; Peters v. Hockley, 152 Ore., 434, 53 Pac. (2d), 1059, but as they are not likely to arise on another bearing, present rulings thereon, which could only be anticipatory, and perhaps supererogatory, are pretermitted. Pemberton v. Greensboro, 208 N. C., 466, 181 S. E., 258.

New trial.