#### ROSE STYRON v. ATLANTIC AND NORTH CAROLINA RAILWAY COMPANY and the TOWN OF MOREHEAD CITY.

(Filed 14 December, 1912.)

1. Cities and Towns — Streets and Sidewalks — Negligence—Evidence —Questions for Jury.

In an action against a city for damages for a personal injury alleged to bave been negligently inflicted, there was evidence tending to show that a city’s street crossed a ditch which had long since been dug by a railroad company from- its right of way and lcépt open, with the permission of the city, for a number of years; that the city had maintained a bridge over this ditch, but had permitted it to become in disrepair, which, at the time complained of, was not more than an 8-foot plank without railing and no lights nearer than 100 yards, and had been generally used by people to walk across for more than ten years; that plaintiff, while attempting to cross after sundown, was thrown by the plank into the ditch and injured: Held, that a motion to nonsuit should not be granted.

2. Cities and Towns — Negligence — Release — Fraud—Instructions for Jury.

A release made by an ignorant and illiterate person of all demand against a city on account of a personal injury alleged to have been negligent!}' inflicted by it, which was not read over to the injured party, who was told by the city officials she had no claim against the city, whereupon she made her mark on the release, the consideration therefor appearing to be inadequate, is sufficient evidence of fraud in its procurement to be submitted to the jury.

Appeal by defendant from Foushee, J., at March Term, 1912, of ÜARTERET.

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 More-head 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.

*792. Was tbe plaintiff injured by tbe negligence of tbe defendant town, as alleged? Answer: Yes.

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

4. Wbat damages, if any, bas tbe plaintiff sustained by reason of tbe alleged negligence ? Answer: $325.

From tbe judgment rendered, both tbe plaintiff and tbe defendant Morebead City appealed.

Abernethy & Davis for plaintiff.

F. H. G-orham, Charles R. Thomas for defendant Morehead Qity.

. J. F. Duncan and L. I. Moore for A. and N. G. Railroad Company.

THE DEFENDANT MOREHEAD CITY’S APPEAL.

Brown, J.

Tbe plaintiff excepted and appealed because bis Honor sustained tbe motion to nonsuit as to tbe defendant railroad company. Tbis appeal bas been heretofore disposed of early in tbe present term, and tbe judgment of tbe Superior Court affirmed.

Tbe defendant Morebead City appeals, and tbe substance of its contentions is tbat in no view of tbe evidence is it liable to tbe plaintiff.

Tbe defendant’s officers evidently tbougbt tbe town was liable, for shortly after plaintiff was injured they procured ber to execute a release in these words: “In consideration of $25, I hereby release tbe town of Morebead City from all liability, etc.”

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

Tbe defendant city offered evidence in contradiction.

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

*80Upon tbe question of tbe liability of tbe defendant city for negligence, we think tbe motion to nonsuit was properly denied.

Tbe 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 tbe railroad company from its right of way to tbe sound, by permission of defendant. Tbe evidence further shows that a street crossed this ditch and that defendant city maintained a bridge across it; that tbe 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 tbe city for twenty-one or twenty-two years.

There is testimony tending to prove that tbe 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 lights 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.