Dennis v. City of Albemarle , 242 N.C. 263 ( 1955 )

87 S.E.2d 561 (1955) 242 N.C. 263

John Teeman DENNIS
v.
The CITY OF ALBEMARLE, Ray Snuggs, and D. A. Holbrook, Contractor.

No. 599.

Supreme Court of North Carolina.

May 25, 1955.

C. M. Llewellyn and M. B. Sherrin, Jr., Concord, for plaintiff, appellee.

R. L. Smith & Son and Henry C. Doby, Jr., Albemarle, for defendant City of Albemarle, appellant.

BOBBITT, Justice.

When the evidence is considered in the light most favorable to plaintiff, the case presented was one for submission to the jury. Hence, defendant's assignments of error, based on the denial of its motions for judgment of nonsuit, are overruled.

The facts as to the purpose and location of the power line are stated above. Plaintiff's evidence tends to show that the height of the wires, over the church road, was nine feet, nine inches.

In some states, the minimum height at which wires may be placed, or permitted to remain, above any traveled portion of a highway, is fixed by statute. Eaton v. Consumers' Power Co., 256 Mich. 549, 240 N.W. 24. In the absence of such statute, it has been held that a person maintaining an overhead wire across a public road has no legal duty to maintain it at height greater than that necessary to clear vehicles within the maximum legal height. Osborne v. Chesapeake & Potomac Telephone Co., 121 W.Va. 357, 3 S.E.2d 527. Our statute, G.S. § 20-116(c), in pertinent part, provides that "no vehicle, unladen or with load, shall exceed a height of twelve feet, six inches, * *." When the height of the vehicle, unladen or with load, does not exceed twelve feet, six inches, it may be lawfully operated upon any public road. The liability of one responsible for a wire stretched across a road at a height less than twelve feet, six inches, which causes injury to a motor vehicle or its occupants, rests on the general law of negligence. 60 C.J.S., Motor Vehicles, § 205, p. 550. The court properly submitted the issue of negligence under appropriate instructions of law as related to evidence.

Even so, defendant insists that the evidence discloses that plaintiff was contributorily negligent, as a matter of law. In this connection, the applicable rule, as stated often in our decisions, is that judgment of nonsuit will not be entered unless the evidence, taken in the light most favorable to plaintiff, so clearly establishes contributory negligence that no other reasonable inference or conclusion can be drawn therefrom. Horton v. Peterson, 238 N.C. 446, 78 S.E.2d 181. "The court is not at liberty to withhold the question from the jury, simply because it is fully convinced that a certain inference should be drawn, so long as persons of fair and sound minds might possibly come to a different conclusion." Negligence, Shearman and Redfield, Revised Edition, sec. 129.

The general rule, applicable here, is well stated in 65 C.J.S., Negligence, § 120, p. 726, as follows: "When a person has exercised the care and caution which an ordinarily prudent person would have exercised under the same or similar circumstances, he is not negligent merely because he temporarily forgot or was inattentive to a known danger. To forget or to be inattentive is not negligence unless it amounts to a failure to exercise ordinary care for one's safety. Regard must be had to the exigencies of the situation, and the circumstances of the particular occasion. Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as where the situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly which are calculated to divert one's attention momentarily from the danger. In order to excuse forgetfulness of, or inattention to, a known danger, some fact, condition, or circumstance must exist which would divert the mind or attention of an ordinarily prudent person; mere lapse of memory is not sufficient, and, if, under the same or similar circumstances, an ordinarily prudent person would not have forgotten or have been inattentive to the danger, such conduct constitutes negligence." See also: 25 Am. Jur. 760, Highways, sec. 468; 40 C.J.S., Highways, § 270, p. 319.

The issue of contributory negligence was held for the jury, when plaintiff's attention was momentarily and involuntarily diverted when accosted by another person, in the following cases: City of Valparaiso v. Schwerdt, 40 Ind.App. 608, 82 N.E. 923; Gigoux v. Yamhill County, 73 Or. 212, 144 P. 437; Kenyon v. City of Mondovi, 98 Wis. 50, 73 N.W. 314; Lyon v. City of Grand Rapids, 121 Wis. 609, 99 N.W. 311.

Upon the evidence here presented, the inference is permissible that plaintiff responded involuntarily when accosted by one calling from the steeple of the church. It can hardly be said that, when plaintiff's attention was momentarily diverted by this rather unusual greeting, the only permissible inference is that he failed to act as an ordinarily prudent person would have acted under the circumstances then existing.

Difficulty in observing the wire, on account of its size, color and location; inability to gauge the height of the wire on this and prior occasions, and lack of knowledge of its height; and the momentary and involuntary diversion of attention when accosted from the church steeple: these circumstances, when considered together, are such that more than one reasonable inference may be drawn therefrom. Hence, the court properly submitted the issue of contributory negligence under appropriate instructions of law as related to the evidence.

Defendant further contends that the court, in its charge, erroneously submitted the negligence issue on a theory of liability unsupported by appropriate allegation.

Plaintiff alleged that "the City of Albemarle and Ray Snuggs" were negligent in their construction and location of the power line. He alleged further that the wires had been torn down when struck by a truck and thereafter repaired and replaced by "the defendants," in the same position.

There was ample evidence to support the first of these allegations and to support the proposition that the wires remained as originally located until plaintiff's injury. The testimony of Shaver stands alone. His is the only evidence tending to show the wires were knocked down by a truck. Defendant's evidence tends to show no such incident occurred. If the wires were knocked down and replaced, there is no evidence as to who replaced the wires between 11 September, 1950, and 21 September, 1950. Yet there is ample evidence that the wires on 21 September, 1950, were in their original location.

In this situation, the court submitted plaintiff's case on two theories of liability: (1) that the power line had remained as originally constructed; and, if not, (2) that defendant had knowledge or notice that it had been restored and was in use at the same location. Under principles of law underlying the decision in Kiser v. Carolina Power & Light Co., 216 N.C. 698, 6 S.E.2d 713, the second theory of liability was a possibility arising upon the evidence then before the court and jury. The crucial issue in controversy was whether the wires on 21 September, 1950, were located and maintained at such height over the church road as to constitute negligence.

Was plaintiff precluded from having his case properly submitted to the jury by variance between his pleading and the evidence? It is noted that plaintiff did not specifically allege that the City of Albemarle, one of three original defendants, replaced the wires. Plaintiff did allege generally that the defendants had knowledge of the location and condition of the wires. Plaintiff did not allege specifically that defendant at all times "maintained" the power line. Yet this may be implied from other allegations and is clearly shown by defendant's evidence. "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties." G.S. § 1-151.

Conceding that the complaint should have been amended to conform more closely to the alternative theories of liability, dependent upon the jury's findings of fact, we cannot see that the defendant, who neither alleged nor offered evidence that plaintiff's injury was caused by the intervening negligent act of a third party, has been taken by surprise or is in any way prejudiced. Hence, such variance as may exist is deemed immaterial. G.S. § 1-168. The case is readily distinguishable from Harton v. Forest City Telephone Co., 146 N.C. 429, 430, 59 S.E. 1022, 14 L.R.A.,N.S., 956, upon which defendant relies.

Defendant assigns as error the peremptory instructions given in plaintiff's favor on the first and second issues.

At the trial, plaintiff was permitted to amend his complaint so as to allege that he presented to the Mayor and governing body of the City of Albemarle within two years from its occurrence his claim for injuries sustained by him of 21 September, 1950; and defendant was permitted to amend its answer so as to plead the special charter provision set out below, and plaintiff's failure to present claim as required thereby, as a further defense to plaintiff's action.

The charter provision, offered by defendant, provides: "That all persons having claims against the town of Albemarle of whatever nature or kind, shall first present the same to the board of commissioners * * * for payment at least sixty days before any suit shall be entered or maintained upon said claim."

Defendant's contention is that the evidence is insufficient to show that plaintiff presented his claim to the Board of Commissioners as required by this charter provision and also by G.S. § 1-53.

G.S. § 1-53, presently codified as a statute of limitation, provides, in part, as follows: "All claims against counties, cities and towns of this State shall be presented to the chairman of the board of county commissioners, or to the chief officers of the cities and towns, within two years after the maturity of such claims, or the holders shall be forever barred from a recovery thereon, * * *." (Emphasis added.) An interesting discussion of the history of G.S. § 1-53 appears in 27 N.C. L.R. 145 et seq. The words emphasized in the portion quoted, as well as the further provisions thereof, and the history of said statute, impel the conclusion that G.S. § 1-53 does not apply to actions for damages based on torts. This answers the query posed in Rivers v. Town of Wilson, 233 N.C. 272, 63 S.E.2d 544. It is noted that a like construction has been placed upon G.S. § 153-64. Nevins v. City of Lexington, 212 N.C. 616, 194 S.E. 293; Sugg v. Town of Greenville, 169 N.C. 606, 86 S.E. 695.

The facts relating to the presentation of plaintiff's claim are as follows: Formal notice of plaintiff's claim was prepared by attorneys acting for plaintiff, in which full particulars of plaintiff's injury on 21 September, 1950, were set out, and demand was made for damages in the amount of $10,000. This was addressed to the Mayor and Board of Commissioners of Albemarle and delivered by plaintiff's counsel to the City Clerk. The attorney then acting for plaintiff testified to these facts. He was shown a carbon copy of such formal notice and asked to identify it. Thereupon, as shown by the record: "Defendant's counsel supplied plaintiff's counsel with original instrument." The original, so produced by defendant, was then identified and offered in evidence.

Defendant contends that delivery to the City Clerk was not presentation to the Board of Commissioners, citing Nevins v. Lexington, supra. We need not consider whether this, standing alone, would be sufficient. Substantial compliance with the charter provision was required. Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88; Perry v. City of High Point, 218 N.C. 714, 12 S.E.2d 275. Here the original notice, more than three years after it had been delivered to the City Clerk, was produced by defendant voluntarily in open court for use as an exhibit in lieu of plaintiff's carbon copy thereof. The original notice had been and was in defendant's custody. Under these circumstances, nothing else appearing, it must be held that plaintiff's demand was presented to the Board of Commissioners in substantial compliance with the charter requirements.

Other assignments of error do not require analysis or discussion. The case was well tried and in it we find no prejudicial error.

No error.