Styron v. Atlantic & North Carolina Railway Co.

Civil action. At the conclusion of the evidence the court sustained a motion to nonsuit the plaintiff as to the defendant, the railroad company. Plaintiff excepted. The court overruled the motion to nonsuit made by defendant town of Morehead City, and submitted these issues to the jury. The defendant Morehead City excepted.

1. Was the release set out in this answer of the defendant town secured by undue influence and fraud, as alleged? Answer: Yes.

2. Was the plaintiff injured by the negligence of the defendant town, as alleged? Answer: Yes. (79)

3. Was plaintiff guilty of contributory negligence, as alleged? Answer: No.

4. What damages, if any, has the plaintiff sustained by reason of the alleged negligence? Answer: $325.

From the judgment rendered, both the plaintiff and the defendant Morehead City appealed. THE DEFENDANT MOREHEAD CITY'S APPEAL. The plaintiff excepted and appealed because his Honor sustained the motion to nonsuit as to the defendant railroad company. This appeal has been heretofore disposed of early in the present term, and the judgment of the Superior Court affirmed.

The defendant Morehead City appeals, and the substance of its contentions is that in no view of the evidence is it liable to the plaintiff.

The defendant's officers evidently thought the town was liable, for shortly after plaintiff was injured they procured her to execute a release in these words: "In consideration of $25, I hereby release the town of Morehead City from all liability," etc.

The plaintiff testified that she is ignorant and cannot read and write; that the release was not read over to her; that the officials told her she had no claim against the town, and that she made her mark; that $16 of the $25 was paid the doctor, and she received only $6 in cash; and that $2 went to pay some money that had been loaned her.

The defendant city offered evidence in contradiction.

The assignments of error raise no questions of evidence, and we think the matter was properly left to the jury by the court.

Upon the question of the liability of the defendant city for (80) negligence, we think the motion to nonsuit was properly denied.

The plaintiff offered evidence tending to prove that she was injured crossing a ditch on a public street of defendant. This ditch was opened many years ago by the railroad company from its right of way to the sound, by permission of defendant. The evidence further shows that a street crossed this ditch and that defendant city maintained a bridge across it; that the street and bridge have been in general use twenty years; that the street was opened up by the city and is called Evans Street, and has been worked by the city for twenty-one or twenty-two years.

There is testimony tending to prove that the city kept up this bridge and that at time plaintiff was injured it consisted of "nothing more than a little bridge, an 8-foot plank"; that there was no railing to it, and no light nearer than 100 yards, and that the bridge was used generally by people to walk across for more than ten years.

Plaintiff testifies she attempted to cross this bridge after sundown in October, 1909, when the plank threw her into the ditch and crippled her; that there was no railing nor lights and nothing to keep her from falling into the ditch.

In our opinion, the evidence of negligence was amply sufficient to justify his Honor in submitting the issue to the jury. Bunch v. Edenton,90 N.C. 431; Russell v. Monroe, 116 N.C. 720; Fitzgerald v. Concord,140 N.C. 112.

The defendant Morehead City will pay all the costs.

No error.

(81)