Hedrick v. Akers , 244 N.C. 274 ( 1956 )

93 S.E.2d 160 (1956) 244 N.C. 274

Ruby G. HEDRICK
v.
L. Belle AKERS and E. R. Lewellyn, trading as U-Wash-lt Laundry.

No. 602.

Supreme Court of North Carolina.

June 6, 1956.

Haworth & Haworth, by Bryon Haworth, Lewis J. Fisher, High Point, for plaintiff appellant.

James B. Lovelace, High Point, for defendant E. R. Lewellyn, trading as U-Wash-It Laundry, appellee.

J. V. Morgan, High Point, for defendant L. Belle Akers, appellee.

HIGGINS, Justice.

The evidence shows the defendant Akers owned a building on Green Street. She operated a sandwich shop in one of its three sections. Another tenant occupied the middle section. The defendant Lewellyn, a tenant, occupied the east section. Obligation on his part to provide drainage was neither shown nor admitted. He did not install the pipe. The evidence fails to show he had any duty with respect to, or responsibility for its upkeep, or any authority to remove it. A tenant is not responsible for injuries due to a defective sidewalk in front of a building under lease from the owner where the owner exercises control. 32 Am.Jur., 821, p. 699; Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842; Knight v. Foster, 163 N.C. 329, 79 S.E. 614, 50 L.R.A., N.S., 286. While contributory negligence on the part of the plaintiff will support the judgment of nonsuit as to the defendant Lewellyn, nevertheless, the judgment as to him in the court below must be sustained for the additional reason the evidence fails to show any negligent act or omission on his part, or the breach of any legal duty he owed the plaintiff.

The evidence of negligence on the part of the defendant Akers was sufficient to require its submission to the jury, unless the evidence of contributory negligence on the part of the plaintiff appears so clearly that no other reasonable inference can be drawn from it. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891. The plaintiff testified she was looking, but did not see the pipe. The question is whether she was negligent in failing to see it. Here are her own words: "It was dirty around there and I didn't know whether there was dirt on the sidewalk, or whether it was concrete, or dirt washed up, or what. * * * I thought the pipe stuck up above the concrete some places as much as five inches and gradually tapered off to less than five inches * * * the pipe which was sticking up above the concrete was about eight or 10 feet in length." The plaintiff did not observe conditions clearly enough to tell the difference between dirt and concrete, although it was daylight and she had good eyes. The mixture of dirt and rain on the sidewalk created an extra hazard which called for a corresponding increase in vigilance.

The conclusion seems inescapable that the plaintiff in this case did not see what she should have seen. "In its present state, the law is not able to protect one who has eyes and will not see." Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 601; Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40. "A person traveling on a street is required in the exercise of due care to use his faculties to discover and avoid defects and obstructions, the care being commensurate with the danger or appearance thereof." Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379, 385. In the Welling case, the plaintiff was injured by stepping in a hole in the sidewalk 4½ x 4½ inches square and one inch or slightly more in depth. This Court held that motion for nonsuit should have been allowed upon the ground of contributory negligence. Walker v. Town of Wilson, 222 N.C. 66, 21 S.E.2d 817; Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799; Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424 at page 426; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571; Burns v. City of Charlotte, 210 N.C. 48, 185 S.E. 443. "He is guilty of contributory negligence if by reason of his failure to exercise such care he fails to discover and avoid a defect which is visible and obvious. Pinnix v. [City of] Durham, 130 N.C. 360, 41 S.E. 932."

In the Welling case, this Court held the plaintiff should have observed a hole in the sidewalk 4½ inches square and one inch or slightly more deep. In this case, the steel pipe was 10 inches in diameter, eight feet long, and elevated from two inches to five inches above the concrete. The plaintiff should have seen it. Negligence on her part appears as a matter of law. Recovery is denied where contributory negligence is one of the proximate and participating causes of the injury.

"* * * What is negligence is a question of law, and, when the facts are admitted or established, the court must say whether it does or does not exist. ``This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause.' Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705."

The judgment of the Superior Court of Guilford County is

Affirmed.