Sowers Ex Rel. Sowers v. Forsyth Warehouse Co.

123 S.E.2d 603 (1962) 256 N.C. 190

Margaret Ann SOWERS, by her Next Friend, Walter F. Sowers, Plaintiff,
v.
FORSYTH WAREHOUSE COMPANY, trading as Star Warehouse, Original Defendant, and City of Winston-Salem, Additional Defendant.

No. 380.

Supreme Court of North Carolina.

January 12, 1962.

J. F. Motsinger and Deal, Hutchins & Minor, Winston-Salem, for plaintiff, appellant.

Hudson, Ferrell, Petree, Stockton & Stockton and Norwood Robinson, Winston-Salem, for defendant Warehouse Company, appellee.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant City of Winston-Salem, appellee.

BOBBITT, Justice.

It was stipulated that Section 115 of the Charter of Winston-Salem provides:

"All claims or demands against the City of Winston-Salem arising in tort shall be presented to the board of aldermen or said city or to the mayor, in writing, signed by the claimant, his attorney or agent, within ninety (90) days after said claim or demand is due or the cause of action accrues; no suit or action shall be brought thereon within ten (10) days or after the expiration of twelve (12) months from the time said claim is so presented, and, unless the claim is so presented within ninety (90) days after the cause of action accrued and unless suit is brought within twelve (12) months thereafter, any action thereon shall be barred."

Plaintiff was injured May 30, 1959. It was stipulated that "no notice of claim was presented to the defendant, the City of Winston-Salem, by the plaintiff, Margaret Sowers, or by anyone in her behalf." Plaintiff's action against the City of Winston-Salem was instituted August 31, 1960.

In Carter v. City of Greensboro, 249 N.C. 328, 331, 106 S.E.2d 564, 567, the rule (relevant to such charter provisions) established by our decisions is stated by Higgins, J., as follows: "Ordinarily, the giving of timely notice is a condition precedent to the right to maintain an action, and nonsuit is proper unless the plaintiff alleges and proves notice. (Citations.) However, there is an exception to the rule. The plaintiff may relieve himself from the necessity of giving notice by alleging and proving that at the time notice should have been given he was under such mental or physical disability as rendered it impossible for him by any ordinary means at his command to give notice; and that he actually gave notice within a reasonable time after the disability was removed. (Citations.)"

Plaintiff did not plead she had given notice as required by Section 115 nor did she plead any facts tending to show her mental or physical inability to give the required notice. It appears from the evidence: Plaintiff became sixteen years of age on June 2, 1959. She had completed the tenth grade. Thereafter, she completed the eleventh grade (1959-1960) and was in the twelfth grade at the time of trial. Immediately after her injury, she was in the hospital one week and thereafter confined to her bed at home for a week or so. The injury to her left heel required that she use crutches and a cane for about six weeks. On the afternoon of May 30, 1959, a few hours after plaintiff was injured, Walter Sowers, plaintiff's uncle, and Cletus Sowers, plaintiff's father, inspected the defective place in the sidewalk; and Bennie S. Orrell, at the request of plaintiff's mother, made photographs thereof. Moreover, Walter Sowers was appointed next friend for plaintiff on December 15, 1959. In this connection, see Rowland v. Beauchamp, 253 N.C. 231, 116 S.E.2d 720, 79 A.L.R. 2d 1263, and cases cited.

Plaintiff's failure to comply with the requirements of Section 115 of its charter constitutes a bar to her alleged action against the City of Winston-Salem. This was sufficient to require that the court grant the motion of the City of Winston-Salem for judgment of involuntary nonsuit.

Hereafter, we consider whether the evidence was sufficient to require submission to the jury as between plaintiff and the Warehouse Company.

Plaintiff's evidence tended to show the facts narrated below.

On May 30, 1959, there was a paved sidewalk, about five feet wide, along the north side of Seventh Street. A grass plot, estimated as one or two feet wide, was between the north edge of the paved sidewalk and the south wall of the one-story warehouse building. There were no entrances or exits in this wall from Oak Street down to Cherry Street. A downspout carried water from the roof of the warehouse building to the foot of said wall. Water then flowed through a drain or culvert, passing under the paved sidewalk and through a break in the curb, into Seventh Street. A metal strip approximately twelve inches wide, at the top of this underground drain or culvert, extended from the curb to the wall of the building. Concrete, estimated as one to one and a half inches in depth, covered this metal strip where it passed under the sidewalk. This concrete covering constituted a portion of the surface of the sidewalk.

The defective portion of the sidewalk where plaintiff stepped was next to the curb. Here, the concrete surface was broken and the metal strip exposed. The hole in the sidewalk extended from the curb back into the sidewalk a distance estimated as being some twelve to eighteen inches and extended some twelve inches (east-west) along the sidewalk. No broken pieces of concrete were there on May 30, 1959. The edges of the concrete around the hole were dark. Weeds were growing out of the hole. After plaintiff's injury, the metal strip was split "right down through the center." Orrell testified: "It was rusty, and it had split, and one piece was mashed down and the other was still holding up." Plaintiff was injured when her left heel was cut by some portion of the metal strip.

Plaintiff's witnesses testified to said defective condition of the sidewalk when observed by them after plaintiff was injured. No witness testified to having observed said defective condition at any time prior to plaintiff's injury. Even so, we think the evidence, when considered in the light most favorable to plaintiff, was sufficient to support a finding that the hole in the sidewalk exposing the metal cover of the culvert had existed for such length of time as to give notice of the defective condition of the sidewalk to a person charged with the legal duty of exercising due care to maintain the sidewalk in a reasonably safe condition. Our task is to determine whether the evidence was sufficient to support a finding that the Warehouse Company was charged with such legal duty.

Plaintiff offered no evidence to support her allegations that the Warehouse Company, after the sidewalk had been paved, removed a portion thereof, constructed the drain or culvert and placed a covering of concrete on the metal strip. (Note: Plaintiff did offer, as against the City of Winston-Salem, a portion of its further answer and defense in which the city alleged, upon information and belief, facts in support of plaintiff's said allegations.) There was no evidence as to when or by whom the sidewalk was paved, or as to whether it was paved before or after the drain or culvert was installed, or as to when or by whom the drain or culvert was installed, or as to whether the concrete covering was or appeared to have been constructed at a time different from the time the entire sidewalk was constructed.

Thus, the narrow question confronting us is this: Is the fact that the drain or culvert was the means by which water from the roof of the warehouse building was carried into Seventh Street sufficient to impose on the Warehouse Company the legal duty to maintain the public paved sidewalk under which the water flowed in a reasonably safe condition for use by the public?

"With respect to the duty to construct, maintain, clean, or otherwise care for sidewalks, the general rule in this country is that no such duty rests upon the owners or occupants of abutting premises, in the absence of statute or ordinance imposing it upon them." 25 Am.Jur., Highways § 65; 40 C.J.S. Highways § 253, p. 291; Annotations: 41 A.L.R. 212, 93 A.L.R. 799; 115 Am. St. Rep. 993. As stated by Winborne, J. (now C. J.) in Klassette v. Liggett Drug Co., 227 N.C. 353, 362, 42 S.E.2d 411, 418, "in so far as pedestrians are concerned, any liability of owner, or of occupant of abutting property for hazardous condition existent upon adjacent sidewalk is limited to conditions created or maintained by him, and must be predicated upon his negligence in that respect."

In Boetsch v. Kenney, 9 N.J.Misc. 390, 154 A. 194, and in Gainfort v. 229 Raritan Avenue Corporation, 127 N.J.L. 409, 22 A.2d 893, cited by plaintiff, the factual situation was quite different from that now under consideration. In Boetsch, the case was submitted and the plaintiff, a pedestrian, recovered from the abutting landowner on the theory (supported by evidence) "that the defendant had broken the pavement and made a hole therein, and that thereafter he failed to exercise reasonable care that the hole and condition so created should not make the highway unsafe for passing pedestrians." In Gainfort, as stated in plaintiff's brief, "the facts were that the former owner of the abutting property had a 550 gallon tank under the sidewalk, which tank he removed, then filled in the excavation and built a new sidewalk over it. The new sidewalk settled causing holes from which plaintiff fell and was injured."

In our research, the decision most favorable to plaintiff's position is City of Louisville v. Metropolitan Realty Co., 168 Ky. 204, 182 S.W. 172. There a drainpipe with metal covering extended from defendant's building across the public sidewalk. Water from the roof flowed through a downpipe and then through said drainpipe to the street. The evidence was held insufficient to show when and by whom these drains were constructed. However, the evidence did show that defendant owned the building and that these drains served its property exclusively. It was held the defendant, as abutting landowner, had the primary duty to keep the portion of the sidewalk crossed by the drain in good repair for use by pedestrians. A pedestrian fell when he stepped on the metal covering over the drainpipe, which metal covering, from rust or other causes, had holes in it. In a prior action, the pedestrian had recovered judgment against the City of Louisville. The City of Louisville brought suit against the Metropolitan Realty Company and recovered on the ground the abutting landowner was primarily liable for damages proximately caused by negligence in respect of the metal covering over said drainpipe.

The facts in the cited Kentucky case differ from those here considered in that the defective metal covering constituted a part of the surface of the public sidewalk and was constructed and intended for pedestrian use. In this respect, the Kentucky case was similar to many cases where the abutting owner or occupant is held liable for a defective condition of the covering over an opening or vault in the sidewalk, constituting a part of the surface of the public sidewalk, constructed and in use for the exclusive benefit of the abutting owner or occupant. Annotation: 62 A.L.R. 1067; 31 A.L.R. 2d 1334. In this connection, see Markham v. Duke Land & Improvement Co., 201 N.C. 117, 158 S.E. 852.

Here, it was not intended that pedestrians should walk upon the metal strip at the top of the underground drain or culvert. It was intended that pedestrians should walk on the concrete covering over the metal strip. This constituted a part of the surface of the public sidewalk. There is no evidence the metal strip was insufficient to support the concrete covering. So far as the evidence discloses, the concrete sidewalk over this metal strip was in good condition except where the concrete near the curb had been broken. There is no evidence as to what caused the concrete near the curb to break. It would seem that greater use would be made by pedestrians of portions of the five-foot sidewalk other than that next to the curb.

It comes to this: Where water is carried from the premises of an abutting landowner through an underground pipe or covered culvert to the city street, and a concrete sidewalk is constructed over such pipe or such covered culvert, and the sidewalk is broken to the extent the pipe or covered culvert is exposed, is the abutting landowner liable to a pedestrian for injuries caused by the defective condition of the sidewalk in the absence of evidence that the abutting landowner either constructed the sidewalk or that he was required by statute or ordinance to keep it in good repair or that he had in some manner caused the defective condition in the sidewalk? We are constrained to answer in the negative.

It may be, if the full facts were disclosed, the law would impose upon the Warehouse Company the duty to exercise due care to keep the portion of the sidewalk over said culvert in good repair. However, when consideration is limited to the facts adduced by plaintiff's evidence, we are of opinion, and so decide, that the evidence was insufficient to support a finding that the Warehouse Company was guilty of a breach of legal duty.

Having reached the conclusion that plaintiff's action against the City of Winston-Salem is barred and that plaintiff's evidence is insufficient to make out a case of actionable negligence against the Warehouse Company, we need not decide or discuss whether, as contended by both defendants, plaintiff's action is barred by her contributory negligence.

Affirmed.

HIGGINS, J., dissents as to defendant Warehouse Company.