Bagwell v. Town of Brevard , 256 N.C. 465 ( 1962 )

124 S.E.2d 129 (1962) 256 N.C. 465

Beulah Reid BAGWELL
v.
TOWN OF BREVARD.

No. 18.

Supreme Court of North Carolina.

February 28, 1962.

J. Bruce Morton and Robert T. Gash, Brevard, for plaintiff, appellant.

Ramsey, Hill & Smart, Brevard, for defendant, appellee.

PER CURIAM.

The facts alleged, but not the pleader's legal conclusions, are deemed admitted when the sufficiency of a complaint is tested by a demurrer. Whether the admitted facts constitute negligence is a question of law.

Plaintiff's allegations describe the alleged defect and her fall as follows: (1) "(T)he said sidewalk was constructed of large concrete sections, approximately six feet square." (2) "(O)ne of the concrete sections was elevated approximately one inch above the adjacent concrete section." (3) When plaintiff's "left foot came to rest along the length of the irregular portion between the concrete sections," the "unequal pressure on the bottom of the plaintiff's foot" caused her ankle to turn, "throwing the plaintiff with great force down to the pavement."

The legal duty of defendant, a municipal corporation, is to exercise ordinary care to maintain its sidewalks in a reasonably safe condition for travel by those using them in a proper manner and with due care. It is not an insurer of the safety of its sidewalks.

Here, the alleged defect or irregularity is a difference in elevation of approximately one inch between two adjacent concrete sections of the sidewalk. Defendant's failure to correct this slight irregularity did not constitute a breach of its said legal duty. Hence, the judgment of the court below is affirmed.

Affirmed.

WINBORNE, C. J., not sitting.