Price v. City of Monroe

68 S.E.2d 283 (1951) 234 N.C. 666

PRICE
v.
CITY OF MONROE (three cases).

No. 600.

Supreme Court of North Carolina.

December 12, 1951.

Coble Funderburk, Monroe, for plaintiffs, appellees.

O. L. Richardson and E. Osborne Ayscue, Monroe, for defendant, appellant.

DEVIN, Chief Justice.

Buford F. Price Case.

This plaintiff was the owner and driver of the automobile involved. On the evening of October 12, 1949, about 9:30 p. m., with his wife and daughter as passengers in the automobile, he drove from the mill where he was employed northwardly along Mill Street in the City of Monroe, and then turned west into Avon Street, a paved street in general use by the public. Across Avon Street 130 feet from Mill Street, the City had dug a ditch for the purpose of installing a new culvert. This work had been in progress several weeks. The ditch was 6 feet wide and 8 feet deep, and extended the entire width of Avon Street. The loose dirt from the excavation had been piled up along the eastern edge of the ditch to form a ridge or bank of earth 1½ to 2 feet high according to plaintiff, or 5 feet high according to the city engineer, and spreading out at the base.

Plaintiff testified there were no barriers or lights on this obstruction; that he was traveling along Avon Street at the rate of 15 miles per hour; that his automobile lights revealed this ridge of dirt but he thought it was dirt used in repairing pavement; that he did not know there was a ditch beyond the ridge and continued to drive without applying his brakes, though he did remove his foot from the accelerator. He said: "I ran straight in the ditch." His front bumper caught on the edge of the pavement on the west side of the ditch, with front wheels in the ditch, while the rear wheels were on top of the ridge of dirt. The automobile and each of the occupants sustained injury. Considering the plaintiff's evidence in the light most favorable for him, it is apparent the City was negligent in permitting an open excavation which it had made across a city street to remain without barriers or lights. Russell v. Monroe, 116 N.C. 720, 21 S.E. 550; Seagraves v. Winston, 170 N.C. 618, 87 S.E. 507; Willis v. New Bern, 191 N.C. 507, 132 S.E. 286; Michaux v. Rocky Mount, 193 N. C. 550, 137 S.E. 663; Hunt v. High Point, 226 N.C. 74, 36 S.E.2d 694. But we think the injuries sustained by plaintiff Buford F. Price are attributable to his own contributory negligence, and that in his case the defendant City was entitled to have its motion for nonsuit sustained.

The conclusion seems inescapable that this observed obstruction in the form of a ridge or bank of recently excavated earth extending entirely across the street over which he was driving should have warned him of danger to his progress, and that if he had exercised reasonable care for his own safety and a proper lookout in the direction in which he was moving, he would and should have become aware of so extensive an excavation in the street in time to have avoided the injurious result now complained of. Blake v. Concord, 233 N.C. 480, 64 S.E.2d 408. While compulsory nonsuit on the ground of contributory negligence may be rendered only when no other conclusion reasonably can be drawn from the plaintiff's evidence, Carruthers v. Southern R. R. Co., 232 N.C. 183, 59 S.E.2d 782; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921, we think his own testimony establishes such want of care on his part as should bar his recovery for the causes alleged. Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227. Nonsuit should have been entered on defendant's motion, and the judgment in favor of plaintiff Buford F. Price is reversed.

Cases of Elizabeth K. and Phyllis Price.

These cases stand upon a different footing from that of Buford F. Price. These plaintiffs were mere passengers in the automobile of which he was the owner and driver. Neither of them owned the automobile or controlled or had right of control over its movement. Under the facts presented they may not be held responsible for the negligence of the driver. Crampton v. Ivie, 126 N.C. 894, 36 S.E. 351; Hunt v. North Carolina R. R. Co., 170 N.C. 442, 87 S.E. 210; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845.

Nor do we think the evidence supports the defendant's contention that these cases should have been nonsuited on the ground that the negligence of the driver was the sole proximate cause of the injuries sustained, or that his negligence insulated and rendered harmless the negligence of the City. Harton v. Forest City Tel. Co., 141 N.C. 455, 54 S.E. 299; Hinnant v. Atlantic Coast Line R. R. Co., 202 N.C. 489, 163 S.E. 555; Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573. The damage to vehicles traveling on this public street, due to so extensive an excavation across it, and the probability of injury resulting from the absence of barriers or lights should have been in the reasonable contemplation of the City. Speas v. Greensboro, supra; Harton v. Forest City Tel. Co., supra. "Foreseeability is the test of whether the intervening act is such a new, independent, and efficient cause as to insulate the original negligent act." Hinnant v. Atlantic Coast Line R. R. Co., 202 N.C. 489, 163 S.E. 555, 558; Milwaukee & St. P. R. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256.

The controlling principle is accurately stated by Justice Hoke in Harton v. Forest City Tel. Co., 141 N.C. 455, 54 S.E. 299, 302, as follows: "It will be seen that the test laid down by all of these writers, by which to determine whether the intervening act of an intelligent agent which has become the efficient cause of an injury, shall be considered a new and independent cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected. If the intervening act was of that character, then the sequence of events put in motion by the primary wrong is not broken, and this may still be held the proximate cause of the injury. Numerous and well-considered decisions by courts of the highest authority show that this is a correct statement of the doctrine."

The defendant did not except to any part of the judge's charge to the jury, but assigned as error that he "did not apply the law to the facts in the case" as required by G.S. § 1-180. However, the defendant did not specify in what respect or particulars the court's failure consisted. This is insufficient. State v. Britt, 225 N. C. 364, 34 S.E.2d 408; Steele v. Coxe, 225 N.C. 726, 733, 36 S.E.2d 288; State v. Jones, 227 N.C. 402, 42 S.E.2d 465; State v. Vanhoy, 230 N.C. 162, 165, 52 S.E.2d 278. In the cases of Elizabeth K. and Phyllis Price only issues of negligence on the part of the defendant and damages to the plaintiffs were submitted to the jury. These is sues were answered in favor of the plaintiffs. The evidence, which was offered without objection by the defendant, was sufficient to support the verdicts and judgments in favor of these plaintiffs. In the trial of these cases there was no error.

In case of Buford F. Price: Reversed.

In case of Elizabeth K. Price: No error.

In case of Phyllis Price: No error.

ERVIN and JOHNSON, JJ., dissented as to decision in case of Buford F. Price.