#### HATTIE N. DILLON v. THE CITY OF RALEIGH.

(Decided March 21, 1899).

Public Streets — Duty, Power, and Liability of Municipality —Tort Feasors — Proximate Oause — Evidence.

1. The duty and power of the municipal authorities, under sections 3802 and 3803 of The Code, to prevent and abate nuisances and obstructions in the public streets, are ample and complete; and they may be held liable to the party injured in consequence of their dereliction.

2. If a person unlawfully places such obstruction in the public streets and the town authorities permit it to remain there an unreasonable length of time, both fall within the rule as to joint tort-feasors, and are jointly and severally liable to the traveller for an injury resulting therefrom without fault on his part. He may have his remedy against either, and the question of primary and secondary liability • is for them to adjust between themselves.

3. In determining what is proximate cause, the rule is that the injury must be the natural and probable consequence of the negligence. When two causes combine to produce an injury, the one being a culpable defect in the street, and the other some other occurrence for which neither party is responsible, e grege, the running away of a frightened horse, the municipality is liable, provided the injury would not have been sustained but for such defect.

4. Evidence that the obstruction has been since removed, while incompetent to prove the character of the obstruction, is admissible to show that it was unnecessary.

Civil ActioN to recover damages for personal injury in consequence of a collision with, an obstruction in a public street in Raleigh, tried before Bryan, J., at October Term, 1898, of Wake Superior Court.

His Honor charged the jury that if they believed the evi-*185den.ce, tbe plaintiff was entitled to recover from the defendant, the City of Raleigh. Defendant excepted.

Verdict and judgment for plaintiff. Defendant appealed.

The nature of the obstruction and the circumstances of the cases are fully stated in the opinion of the Chief Justice.

Messrs. Perrin Busbee and Douglass & Simms, for defendant (appellant).

Messrs. Argo & Snow, for plaintiff.

Eaiecloth, O. J.

This action is based on the alleged omission of duty on the part of the defendant in failing to keep its streets in repair and removing obstructions therefrom, in consequence of which the plaintiff sustained personal injuries. There is practically no disagreement as to the facts.

Many years ago the city was duly organized as a municipal corporation, with proper municipal officers, and it was laid out in squares and streets, and has so continued to the present time. One of its principal streets leads from the capitol building southward to the corporate limits, and there connects with a public county road, along which street and road the public were accustomed to travel, and on which street the injury occurred.

Byitscharter (Acts 1848-9,chapter 82) the North Carolina Railroad was permitted to enter the corporate limits of defendant city and to cross its streets, and it did cross said street about fifteen feet above the level of the street. The railroad runs diagonally across the street, and its stringers are supported by four sets of upright posts, or benches, standing in the street. These benches are ten or twelve feet long and about twelve feet apart. They stand at right angles with the railroad stringers and form an acute angle of forty-five degrees with the direct course of the street.

*186The existence and presence of these upright benches in the street were known to the municipal authorities of the city at and before the date of the injury alleged in the complaint.

In Jauary, 1896, the plaintiff, with another lady, was driving a gentle horse along said street in the direction of the railroad crossing, when suddenly the horse became frightened, without any known cause, and dashed through said benches, and the buggy struck the far-off corner of one of them, and the injury complained of was the result.

The issues submitted were: 1. “Was the plaintiff injured through the negligence of defendant?” Ans. “Yes.” 2. “What damage, if any, is the plaintff entitled to recover ?” Ans. “$3,000.”

The defendant caused the railroad company to be made a party defendant and filed a “cross complaint,” under section 424 of The Code, against said railroad company, to which a demurrer was filed and the cross-complaint was dismissed, alleging that said road was primarily liable for any injury sustained by the plaintiff. While we do not propose to discuss the liability or non-liability of the railroad company, we see no error in the cross-complaint.

In the charter of said railroad company, allowing it to pass through the city limits and cross its streets, section 26 provides “that the said company (railroad) shall not obstruct any public road without constructing another equally as good and as convenient,” etc.

The main question presented to this Court is, “Is the city defendant liable in damages to the plaintiff for alleged injury?” In some jurisdictions liability in such cases is implied at common law, but in many of the different States, perhaps in all, we find the matter regulated by special or general statutory provisions. In our State, The Code, section 3803, enacts that the commissioners of towns and cities *187“shall provide for keeping in proper repair tbe streets and bridges in tbe town, in tbe manner and to tbe extent they may deem best,” etc. And section 3802 says, “they may pass laws for abating or preventing nuisances of any kind, and for preserving tbe bealtb of tbe citizens.” Tbe duty and power of tbe municipality thus appear to be ample and complete. If any person shall unlawfully erect an obstruction or nuisance in tbe streets of a city, and tbe town authorities shall permit it to remain an unreasonable length of time, tbe town and tbe tort-feasor are jointly and severally liable to tbe traveller for an’ injury resulting therefrom, without any fault on bis part. Tbe question of primary and secondary liability is for tbe offending parties to adjust between themselves. Tbe injured party shall baye bis remedy against either, as they fall under tbe rule as to joint tort-feasors. Burwell on Personal Injuries, section 190.

Tbe evidence that tbe benches bad since been removed was incompetent to prove tbe character of tbe obstruction, but was admissible-to show that tbe obstruction was unnecessary. It was in evidence that travellers could, and did, pass through tbe bridge safely, when driving a gentle horse, by changing their course to conform to tbe diagonal direction of tbe benches. No contributory negligence on tbe part of tbe plaintiff is found, nor is there any evidence to support such an issue. Tbe cause of tbe horse’s becoming frightened is unknown. It was gentle and road-worthy, and we can not, without some proof, impute carelessness in tbe driver under such circumstances. The plaintiff evidently lost control of tbe horse in its flight.

Tbe defendant contends that, as tbe injury was tbe result of at least two causes, i. e. tbe running of tbe horse and tbe presence of tbe benches in tbe street, tbe proximate cause can not be ascertained, and therefore tbe plaintiff can not *188recover. This is a question of some difficulty, and we believe it bas never been passed on by this Court. It has, however, been considered frequently in other jurisdictions. It seems to be settled by authority and reason that when both parties have been equally negligent, the plaintiff can not recover' unless in cases of continuing negligence. It is still more complicated when the parties have been negligent in different degrees. When it appears that the defendant has been negligent and the plaintiff has not, the plaintiff may recover, although the injury is produced by the concurrent acts of both parties. It is the duty of corporate authorities to remove dangerous and unnecessary obstructions from the streets, and “in determining what is proximate cause, the rule is that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” West Mahoney v. Watson, 112 Pa., 574.

When two causes combine to produce an injury to a trav-eller on a highway, both of which are in their nature proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, — the municipality is liable, provided the injury would not have been sustained but for such defect. Ring v. Cohoes, 77 N. Y., 83.

The town can not be exonerated because other causes cooperate with the obstruction or defect, for, under such a rule it never would be liable. The true principle is that the wrongdoer, either by commission or omission, must be held responsible.

In Bunch v. Town of Edenton, 90 N. C., 431, the duties and liabilities of town and cities were discussed by Mee-bimoN, J. The case was that an adjoining lot owner made *189an excavation to tbe line of tbe sidewalk, and tbat a footman, walking on tbe sidewalk at nigbt, fell into tbe excavation and was injured, without any undue care on bis part. Tbe excavation was known to tbe defendant, and there was no railing or guard on tbe line of tbe excavation. Tbe Court held tbe defendant liable, and tbat tbe negligence of tbe lot owner, if any, was no defence for tbe town. On tbe same subject,see Russell v. Town of Monroe, 116 N. C., 720. Upon this view of tbe case it seems unnecessary to express any opinion on tbe numerous exceptions made, and we see no error in tbe record.

Affirmed.