Barnett v. City of Elizabeth City, 222 N.C. 760 (1943)

Feb. 24, 1943 · Supreme Court of North Carolina

222 N.C. 760

DORA L. BARNETT v. CITY OF ELIZABETH CITY.

(Filed 24 February, 1943.)

Appeal by plaintiff from Hamilton/ Special Judge, at October Term, 1942, of PasquotaNK.

Civil action to recover damages for personal injuries sustained by plaintiff when she fell on a public sidewalk in tbe city of Elizabeth City.

Tbe record discloses tbat on Sunday evening, 23 June, 1940, about dusk, tbe plaintiff was out walking with her husband in Elizabeth City. As she was about to cross Martin Street to get on tbe opposite side thereof, an automobile coming at a high rate of speed attracted her attention, and she stepped into a depression or “sink down bole” approximately 8 or 10 inches in diameter, 5 or 6 inches deep, and covered with grass. It was about 18 inches from tbe curbing. Tbe sidewalk was unpaved. Plaintiff says : “Tbe bole was grown up, and I did not see it. I stepped into it accidentally.”

Plaintiff gave notice of her claim on 29 January, 1941. Tbe city charter requires such notice to be given within 90 days after cause of action accrues.

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

W. W. Oohoon and B. Clarence Dozier for plaintiff, appellant.

J. W. Jennette for defendant, appellee.

Per Curiam.

A careful perusal of tbe record leaves us with tbe impression tbat tbe demurrer to tbe evidence was properly sustained, if not upon tbe principal issue of liability, Houston v. Monroe, 213 N. C., 788, 197 S. E., 571; Pace v. Charlotte, 221 N. C., 245, 19 S. E. (2d), 871, then for failure to give written notice of claim as required by tbe city charter. Trust Co. v. Asheville, 207 N. C., 162, 176 S. E., 257; Pender v. Salisbury, 160 N. C., 363, 76 S. E., 228. In either event, the result is an affirmance of the judgment of nonsuit.

Affirmed.