Wallsee v. CAROLINA WATER COMPANY , 265 N.C. 291 ( 1965 )

144 S.E.2d 21 (1965) 265 N.C. 291

Mary Hardesty WALLSEE
v.
CAROLINA WATER COMPANY and Town of Morehead City.

No. 121.

Supreme Court of North Carolina.

September 22, 1965.

Harvey Hamilton, Jr., and Luther Hamilton, Sr., Morehead City, for plaintiff appellant.

George H. McNeill, Morehead City, for Town of Morehead City, defendant appellee.

Barden, Stith, McCotter & Sugg, by L. A. Stith, New Bern, for Carolina Water Co., defendant appellee.

PARKER, Justice.

Plaintiff's evidence considered in the light most favorable to her would permit a jury to find the following facts and to draw the following legitimate inferences therefrom, Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492:

Carolina Water Company, through franchise arrangement with the town of Morehead City, placed on Fisher Street in the town of Morehead City a water meter box, with top dimensions of about 10 × 20 inches, in front of plaintiff's home. For six or seven months prior to 3 May 1963 this water meter box had been sunk down in the ground at least seven or eight inches below the level of Fisher Street leaving an open hole above. This open hole above the meter box created a dangerous condition in Fisher Street to pedestrians using the street. Plaintiff knew this dangerous condition was in the street and reported it several times to Carolina Water Company, and also reported it to the town of Morehead City. Neither defendant did anything to remedy this dangerous condition in Fisher Street, to prevent injury to pedestrians using the street, although each had actual knowledge of it, and the character of the hole in Fisher Street was such that injury to pedestrians using this street might reasonably be anticipated by defendants. On 3 May 1963 plaintiff stepped in this hole, fell, and was seriously injured. Plaintiff's evidence would permit a jury to find that each defendant was negligent, and that the negligence of each proximately caused her injuries. Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S. Ct. 564, 40 L. Ed. 712; Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070; Oklahoma Natural Gas Co. v. Hancock, Okl., 272 P.2d 450; 63 C.J. S. Municipal Corporations §§ 863a and 867; 19 McQuillin, Municipal Corporations 3d ed., § 54.91; Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309; Faw v. Town of North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Bailey v. City of Asheville, 180 N.C. 645, 105 S.E. 326; Gasque v. City of Asheville, 207 N.C. 821, 178 S.E. 848; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146. Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799, and Rivers v. Town of Wilson, 233 N.C. 272, 63 S.E.2d 544, are factually distinguishable.

The Honorable Luther Hamilton, Sr., a former distinguished jurist and a learned and scholarly lawyer, with his customary frankness and fairness to the Court, states in his brief for plaintiff:

"AS TO CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PLAINTIFF: We concede that, except for the attention of the plaintiff being diverted momentarily by the barking of her little dog, there would have been no excuse for her stepping into the meter box hole. She knew of its existence, had passed it many times, and was afraid that she herself or somebody else might fall in, and, knowing of its presence, always before had evaded or avoided it, while passing that way ``many, many times.' The barking of her little dog reminded her, or at least suggested the probability, that she was about to be followed by it and that she was unwilling to have it ``follow her down the street' for fear it might get run over or hurt. * * * Plaintiff turned around to admonish the dog, and as she stepped forward in turning back, without having had time to redirect her attention to where she was going, the next step, made as she turned, put her right into the hole of the water meter box."

Plaintiff contends that the barking of her little dog diverted her attention or mind from her known danger of the open hole above the water meter box, and that the question of whether or not she was guilty of negligence proximately contributing to her injuries should be submitted to a jury under the law as stated in 65 C.J.S. Negligence § 120, p. 726, which is quoted with approval in Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E.2d 561, and also in Walker v. Randolph County, 251 N.C. 805, 112 S.E.2d 551, from the Dennis case. This statement of law is 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."

The law imposes upon a person sui juris the duty to exercise ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided. Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499; Alford v. Washington, 244 N.C. 132, 92 S.E.2d 788. The standard of care is always the conduct of the reasonably prudent man. The rule is constant while the degree of care which a reasonably prudent man exercises or should exercise varies with the exigencies of the occasion. Greene v. Meredith, 264 N.C. 178, 141 S.E.2d 287.

Plaintiff, according to her own testimony, knew that the water meter box "was sunk down in the ground at least 7 or 8 inches if not further," below the level of Fisher Street, and had been for 6 or 7 months. During this time she passed it many, many times. She knew the hole had created a dangerous condition in the street for pedestrians using the street. She testified: "I had made complaint about it to Mr. Gillikin, the one who reads the meters and told him someone was going to get hurt in that meter box; that some of the children were playing ball in the street and maybe some grown person was going to fall in it and get hurt. I told him about it several times. * * * I called the City, the place where the truck was that has charge of the street. They call it the Street Department, and told the one that answered the telephone and he said he would tell Mr. Waters, head of the Street Department."

Considering plaintiff's evidence in the light most favorable to her, it compels the inescapable conclusion—no other conclusion can be reasonably drawn therefrom —by any person of fair and sound judgment that under the same or similar circumstances the barking of a little pet dog on the porch, which apparently desired to follow its owner to a nearby grocery store, would not have diverted the mind or attention of an ordinarily prudent person and caused him to forget or to be inattentive to the known danger of a dangerous hole in the sidewalk he was using, the perilous character of which he had reported with the statement "someone is going to get hurt in that meter box," and that under all the circumstances as shown by plaintiff's own evidence, her stepping into this hole and falling, a hole she knew was in the sidewalk and had reported to defendants with the statement "someone is going to get hurt in that meter box," constituted a failure to exercise that degree of care and caution to protect herself from injury that an ordinarily prudent person under like conditions of known danger and foreseeability of injury would exercise, and was negligence, and that such negligence on her part was one of the proximate causes contributing to her injuries.

"Plaintiff's negligence need not be the sole proximate cause of the injury to bar recovery. It is enough if it contribute to the injury as a proximate cause, or one of them." Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357.

It is firmly established in the adjective law of this State that when the defendant pleads contributory negligence, and plaintiff's own evidence, considered in the light most favorable to him, affirmatively shows such contributory negligence on his part so clearly that no other conclusion can be reasonably drawn therefrom, defendant is entitled to have his motion for judgment of compulsory nonsuit sustained. Ramey v. Southern R. R., 262 N.C. 230, 136 S.E.2d 638; Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

Walker v. Randolph County, supra, is factually distinguishable, in that, inter alia, plaintiff was in the courthouse "intent on finding a notice of sale at the time she fell down the stairway," she had never been in that part of the courthouse before, and never realized the stairway was there until she fell down it. Dennis v. City of Albemarle, supra, is also factually distinguishable, in that, inter alia: "Plaintiff was watching for the wire but did not see it. He knew the wire was there but did not know its height. He attributed his inability to see it, in part, to the presence of the trees, some fifty to seventy-five feet high." See also the opinion on rehearing of the Dennis case, 243 N.C. 221, 90 S.E.2d 532.

No inflexible rule can be laid down as to what constitutes contributory negligence as a matter of law, as each case must be decided on its merits. Plaintiff by her own evidence has proven herself out of court on the ground of contributory negligence. Lincoln v. Atlantic Coast Line R. R., 207 N.C. 787, 178 S.E. 601. The conclusion we have reached finds support in our following decisions: Burns v. City of Charlotte, 210 N.C. 48, 185 S.E. 443; Oliver v. City of Raleigh, 212 N.C. 465, 193 S.E. 853; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571; Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Finch v. Town of Spring Hope, 215 N.C. 246, 1 S.E.2d 634; Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379. See also O'Neill v. City of St. Louis, Supreme Court of Missouri, Division No. 1, 292 Mo. 656, 239 S.W. 94. The judgment of compulsory nonsuit below is

Affirmed.