Childress v. Lawrence, 220 N.C. 195 (1941)

Oct. 15, 1941 · Supreme Court of North Carolina
220 N.C. 195


(Filed 15 October, 1941.)

1. Trial § 23—

A conflict in the testimony of plaintiff's witnesses upon a material fact raises the issue for the determination of the jury.

2. Landlord and Tenant § 11—

Evidence that defendant landlord maintained a shelter or roof extending from the front wall of his building, that at one end of the building the projection was 6S inches from the ground, that plaintiff struck his head against the shelter or roof while walking on a clear sunshiny day, with conflicting evidence as to whether the projection extended over a *196portion oí the sidewalk, is held, to take tlie case to tlie jury upon tlie theory of the landlord’s liability to injured third persons when he knowingly demises the premises in a state of nuisance or authorizes a wrong.

Appeal by plaintiff from Sink, Jat June Term, 1941, of Harnett.

Civil action to recover damages for personal injuries alleged to bave been caused by tbe negligence of tbe defendant.

Tbe evidence on bebalf of tbe plaintiff tends to sbow tbat on 17 September, 1940, be was walking along tbe sidewalk on tbe south side of Wicker Street in tbe town of Sanford and struck bis bead against a shelter or roof which protruded out from tbe defendant’s building and extended partly over tbe sidewalk. Plaintiff’s right eye was injured and be ultimately lost tbe sight of it. Tbe sidewalk slopes from east to west in front of defendant’s building, and tbe shelter or roof of tbe building protrudes out from tbe building a distance of 54 inches and extends over a portion of tbe sidewalk. “At tbe east end of tbe shelter or roof it is 68 inches from tbe ground and at tbe west end it is 6% feet.” Tbe difference in height is due to tbe slope of tbe sidewalk. “Tbe sidewalk is on a hillside, kinder elevated, tbe sidewalk slopes and street and all.” Plaintiff was walking from east to west. A crowd was in front of defendant’s building which was then used as a wiener stand or “chicken bouse.” Tbe rafter was in plain view and it was a clear, sunshiny day.

Tbe plaintiff testified, as did tbe surveyor who measured tbe distance, tbat “tbe shelter or roof of tbat building protrudes out over tbe sidewalk.”

One of plaintiff’s witnesses testified: “Tbe eaves extend out some distance from tbe walls of the building, to 4 feet, I think. They do not extend out over tbe sidewalk or any portion of it.”

Tbe defendant contended tbat plaintiff’s injury was due to bis own inattentiveness, and tbat as landlord or owner of tbe building be was not liable.

From judgment of nonsuit entered at tbe close of plaintiff’s evidence, he appeals, assigning error.

Neill McK. Salmon for plaintiff, appellant.

Williams & Seymour and Gavin, Jackson & Gavin for defendant, appellee.

Stacy, C. J.

We think tbe case is one for tbe jury. True, there is evidence tbat tbe eaves of defendant’s building do not extend over any portion of tbe sidewalk. There is also evidence tbat they do. This presents a conflict in tbe testimony of plaintiff’s witnesses, solvable alone by tbe jury. Franck v. Hines, 182 N. C., 251, 109 S. E., 21; Shell v. *197 Roseman, 155 N. C., 90, 71 S. E., 86; Evans v. Cowan, 194 N. C., 273, 139 S. E., 434.

Tbe general rule is, tbat when a landlord or owner “knowingly demises premises in a ruinous condition or in a state of nuisance,” or “where he authorizes a wrong,” he renders himself liable to third persons for injuries resulting therefrom. Knight v. Foster, 163 N. C., 329, 79 S. E., 614; Bucher v. Willey, 174 N. C., 42, 93 S. E., 379; Brooks v. Mills Co., 182 N. C., 719, 110 S. E., 96; Price v. Travis, 149 Va., 536, 140 S. E., 644, 56 A. L. R., 209; 13 R. C. L., 404; 25 Am. Jur., 566.

Applying this principle to the facts in hand, it would seem that the evidence is sufficient to carry the ease to the jury.