Brewster v. Elizabeth City. ( 1906 )

The following issue, with others, was submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: No.

From a judgment for the defendant, the plaintiff appealed. This cause was formerly before this Court, and a new trial ordered because of error in the charge upon the second issue, relating to contributory negligence. The facts of the case are set out in the opinion,Brewster v. Elizabeth City, 137 N.C. 392. On the recent trial the jury found the issue of negligence against the plaintiff. Plaintiff excepted to the refusal of the Court to give the following instructions upon the first issue: (1) "That if the plank was placed upon the stringer as testified, and if you believe that they, or one or more of them, were loose upon the same and had remained loose for six or twelve months or more, or the bridge was not safe, and the defendant corporation was negligent in not discharging its duty, and the presumption arises (11) that it had notice of the same, it would be your duty to answer the first issue `Yes'." (2) "If you believe all the evidence in this case you should find that the bridge was not safe; that the defendant was negligent in not keeping it in a safe condition; and it would be your duty to answer the first issue `Yes'."

The vice in the first instruction is twofold: it assumes that the plaintiff was injured (an allegation which is denied in the pleadings) and that the negligence of the defendant's officers caused the injury. The vice in the second instruction consists in assuming as matter of law that the alleged negligence was the proximate cause of the injury, and that the officers of defendant had constructive notice of the defective condition of the bridge.

In order to constitute actionable negligence, the defendant must have committed a negligent act, and such negligent conduct must have been the proximate cause of the injury. The two must concur and be proved by the plaintiff by the clear weight of the evidence. A failure to establish proximate cause, although negligence be proved, is fatal. It is not every negligent act, no matter how gross or flagrant, that can be the subject of an action, but only such negligent acts as immediately cause an injury. This is elementary.

The plaintiff also assumes that defendant's officers had constructive notice of the defective condition of the bridge in that the plank was not nailed down. The evidence showed it had once been secured in its place by nails. There is no evidence that the officers had knowledge of the defect other than that which may be inferred from the length of time it had continued. It is not for the Court to draw such inference. It is peculiarly a matter for the jury, to be determined upon all the facts and circumstances in evidence. This was so held in Fitzgerald v.Concord, 140 N.C. 114, in the following language: "On the question of notice implied from the continued existence of a defect, no definite or fixed rule can be laid down as to the time required, and (12) it is usually a question for the jury on the facts and circumstances of each particular case, giving proper consideration to the character of the structure, the nature of the defect, etc."

Instead of the testimony of Weeks, the street commissioner, proving actual knowledge of the defects, as plaintiff contends, it somewhat tends to prove the contrary. He had the bridge put down a year before the accident and nailed the plank down. He passed over the bridge frequently. There is nothing in his evidence which would justify the Court in holding that, if taken to be true, the defendant's officers or Weeks himself had knowledge of the defective condition of the bridge at the time of the unfortunate injury to plaintiff.

We have examined the charge of the Judge below with care, and think that it presents every feature of the case to the jury fairly, clearly, and correctly, in accord with well-settled principles.

As there are no exceptions to the evidence, we find

No Error.

Cited: Bailey v. Winston, 157 N.C. 259.