Gower v. City of Raleigh

153 S.E.2d 857 (1967) 270 N.C. 149

Lettie May GOWER
v.
CITY OF RALEIGH.

No. 545.

Supreme Court of North Carolina.

April 19, 1967.

Paul F. Smith and Donald L. Smith, Raleigh, for the City of Raleigh.

E. R. Temple and Ernest L. Culbreth, Smithfield, for plaintiff appellant.

PER CURIAM.

The plaintiff's evidence establishes that the plaintiff fell at the time and place stated in the complaint and sustained serious injury as the result of her fall. This is not sufficient to impose liability upon the city. It is not liable to every pedestrian who falls and sustains an injury by reason of an inequality in the level of or a defect in its sidewalk, curb or street. The city is not liable for such injury unless it was negligent in failing to correct the defect within a reasonable time after it knew, or should have known, that it existed and was a hazard to persons using the street or walk in a proper manner. Waters v. City of Roanoke Rapids, 270 N.C. 43, 153 S.E.2d 783; Smith v. City of Hickory, 252 N.C. 316, 113 S.E.2d 557.

The plaintiff's evidence, taken as true, is not sufficient to permit a finding that the city knew of or, by reasonable inspection of its sidewalk and crosswalk, should have known of either the crack or the presence of the oily substance. She testified that at 9:20 a.m. on a clear day, she looked down before stepping off the curb and did not observe either condition. Neither would have been more visible to a city inspector than to her. There is nothing to indicate how long the oily substance had been upon the sidewalk or curb.

If, on the other hand, the plaintiff did observe the crack before she stepped on it, as her testimony at another point would indicate, and the existence of the crack was so clearly dangerous to users of the sidewalk that the city should have anticipated injury therefrom, the plaintiff, having observed the crack, should also have recognized the danger of stepping upon it. Its small extent, according to her description, made it easy to avoid. If the city should have known the crack was a hazard to pedestrians, the plaintiff was negligent in stepping upon it, and thereby contributed to her own injury.

The plaintiff also excepts to certain rulings of the court sustaining objections to evidence offered by her. With reference to exception No. 8, the answer which the witness would have given is not shown in the record. Consequently, this ruling cannot be deemed prejudicial error. Had all the other proposed testimony been admitted, there would still be insufficient evidence to support a finding of negligence by the city.

Affirmed.