#### FOY v. WINSTON.

(Filed May 17, 1904).

1. INSTRUCTIONS — Trial—Practice-—Verdict.

A request to charge that the “plaintiff cannot recover” should not be given.

2. NEGLIGENCE — Municipal Corporations.

The presence of a strip of timber nailed lengthwise of the street to electric light poles set in the edge of a sidewalk, maintained for over six years and used for hitching animals, does not constitute negligence justifying a recovery' for injuries to a blind man running against the same.

Actioh by Pleasant Eoy against tbe city of Winston, beard by Judge W. A. Hoke and a jury, at January (Special) Term, 1904, of tbe Superior Court of Eoesyth County. From a judgment for tbe plaintiff tbe defendant appealed.

Lindsay Patterson, for tbe plaintiff.

Watson, Buxton & Watson, for tbe defendant.

Clark, C. J.

Tbe plaintiff, a blind man and unattended, attempted to cross tbe street not at a regular crossing. There was a row of electric light poles on tbe outer edge of tbe sidewalk and to two of such poles, which were about five feet *440apart, was nailed a strip about two inches square and about ten feet long, which projected beyond one pole about three feet and some six or eight inches beyond the other pole. This strip was nailed four and a half or five feet above the ground and had been there some six years, and was used for a hitching post, being on the edge of the sidewalk around the courthouse square. The strip did not obstruct any one passing along the sidewalk or along the street. The plaintiff, coming-down the walk from the court-house, instead of turning to the left or right and going to the corner of the square where the street crossings are, attempted to go diagonally across the street at that point, and not discovering by the use of his stick that there was any strip nailed from one post to the other, ran against it and was hurt. Why he should have run against it with such impetus as to be seriously hurt (if he was) does not appear. “The defendant asked the Court to hold as a matter of law that the plaintiff could not recover and to so charge the jury. The Court declined to so hold or charge, but left the question to the jury to decide on the entire testimony whether there was negligence on the part of the defendant in carrsing the injury. The defendant excepted.”

There was no error in refusing to charge that “'the plaintiff cannot recover.” This instruction is not applicable to our present system, under which there is no general verdict, but the jury responds to issues. Vanderbilt v. Brown, 128 N. C., 501; Bradley v. Railroad, 126 N. C., 740; Willis v. Railroad, 122 N. C., 909, and several other cases there cited. But the Judge erred in “leaving the question to the jury to decide on the entire testimony whether there was negligence on the part of the defendant in causing the injury.” There was no conflict in the evidence, and when the facts are known and only one inference can be drawn from them negligence is a question of law for the Court. We do *441not see wherein the defendant was negligent. The strip nailed to two electric light poles standing along the outer edge of the sidewalk around the court-house square did not impede travel along the sidewalk or along the street, nor interfere with those passing from one side of the street to the other at the regular and usual crossing places. The strip, used as a hitching rack, was a convenience to those coming to the court-house on business, otherwise than on foot, to have some place to hitch their horses, and it was no inconvenience to any one else. Those living in the country, or too far from the court-house to walk, are entitled to some consideration for their convenience as to hitching their animals. The strip had been there, used for this purpose and without complaint, so far as shown, for about six years. There was no negligence of the defendant shown, and it was -the plaintiffs own fault that, blind and unattended, he attempted to cross the street at other than one of the regular crossings provided for the publicIn an action by this same plaintiff against the defendant for a different injury, Foy v. Winston, 126 N. C., 381, it was held that it was not negligence per se for him to pass along the public sidewalk without a guide provided he used ordinary care, adding that “ordinary care on the part of a blind man means a higher degree of care than would be required of a person in possession of all his senses.” We did not mean to be understood as giving the plaintiff permission to leave the sidewalk and public crossings provided for pedestrians and to plunge across the streets at any point he chose. Besides, instead of using a “higher degree of care than would be required of a person in possession of all his senses” he used less, since no one in possession of his eyes with ordinary care would have run against the horse-rack. We are, however, not resting the decision upon the contributory negligence of the plaintiff but upon the ground that no negligence has been shown on the part of the defendant.

Error.

*442Douglas, J.,

concurring in result. Tbe opinion of tbe Court says: “When tbe facts are known and only one inference can be drawn from tbem, negligence is a question of law for tbe Court.” I know there are precedents tending in that direction, but it seems to me, on tbe better and greater weight of authority, that tbe rule is too broadly stated even if instrinsically correct.

Under tbe rule of “tbe prudent man” — which seems now to be meeting with practically universal acceptance — negligence, and especially in its proximate relation to tbe injury, is a mixed question of law and fact for tbe determination of tbe jury. Tbe Court can, in proper cases, direct tbe plaintiff to be nonsuited on tbe ground that there is no evidence tending to prove negligence, but any intimation that tbe Court can weigh tbe evidence and harmonize conflicting inferences, and then say that negligence has or has not been proved, either on tbe part of tbe plaintiff or tbe defendant, is a proposition too dangerous in its tendencies to admit of my approval.