{ "id": 8574518, "name": "MARGARET ANN DUNNING by her Next Friend, WALTER F. SOWERS, v. FORSYTH WAREHOUSE CO., t/a STAR WAREHOUSE", "name_abbreviation": "Dunning ex rel. Sowers v. Forsyth Warehouse Co.", "decision_date": "1968-02-02", "docket_number": "", "first_page": "723", "last_page": "726", "citations": [ { "type": "official", "cite": "272 N.C. 723" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "256 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571730 ], "opinion_index": -1, "case_paths": [ "/nc/256/0190-01" ] }, { "cite": "105 S.E. 326", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "180 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654417 ], "opinion_index": 0, "case_paths": [ "/nc/180/0645-01" ] }, { "cite": "154 A. 194", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "9 N.J. Misc. 390", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 736213 ], "opinion_index": 0, "case_paths": [ "/nj-misc/9/0390-01" ] }, { "cite": "236 N.Y.S. 2d 446", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "88 A.L.R. 2d 363", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "56 A. 166", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "70 N.J.L. 7", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 619967 ], "opinion_index": 0, "case_paths": [ "/njl/70/0007-01" ] }, { "cite": "161 N.E. 878", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "264 Mass. 90", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 841644 ], "opinion_index": 0, "case_paths": [ "/mass/264/0090-01" ] }, { "cite": "42 S.E. 2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625042 ], "opinion_index": 0, "case_paths": [ "/nc/227/0353-01" ] }, { "cite": "93 S.E. 2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219571 ], "opinion_index": 0, "case_paths": [ "/nc/244/0274-01" ] }, { "cite": "16 S.E. 2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11300721 ], "opinion_index": 0, "case_paths": [ "/nc/220/0195-01" ] }, { "cite": "87 S.E. 507", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661279 ], "opinion_index": 0, "case_paths": [ "/nc/170/0618-01" ] }, { "cite": "50 S.E. 711", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269254 ], "opinion_index": 0, "case_paths": [ "/nc/138/0288-01" ] }, { "cite": "150 S.E. 2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560298 ], "opinion_index": 0, "case_paths": [ "/nc/268/0110-01" ] }, { "cite": "98 S.E. 2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627182 ], "opinion_index": 0, "case_paths": [ "/nc/246/0510-01" ] }, { "cite": "117 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627040 ], "opinion_index": 0, "case_paths": [ "/nc/253/0746-01" ] } ], "analysis": { "cardinality": 453, "char_count": 8100, "ocr_confidence": 0.585, "pagerank": { "raw": 2.625696762129015e-07, "percentile": 0.8217486811007129 }, "sha256": "4e8efad4b78eb27200b772ab745d2136ba184951eb1367339bf61efb9e38c121", "simhash": "1:3f742e7b41af2667", "word_count": 1315 }, "last_updated": "2023-07-14T21:31:35.058336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARGARET ANN DUNNING by her Next Friend, WALTER F. SOWERS, v. FORSYTH WAREHOUSE CO., t/a STAR WAREHOUSE." ], "opinions": [ { "text": "Higgins, J.\nOn the former appeal, this Court affirmed the judgment of nonsuit and dismissed the action against the City of Winston-Salem upon the ground the plaintiff had failed to give the notice required as a condition precedent to a suit against the city. This Court also affirmed the nonsuit of the action against the present defendant upon the ground the evidence failed to show the defendant created or was responsible for the dangerous condition of the sidewalk. The evidence did not disclose who constructed the dangerous culvert, placed a thin metal sheet over the top, then added enough concrete over the metal to make the surface even with the sidewalk.\nHowever, the allegation and evidence against the defendant permit a finding that at the time the defendant constructed its warehouse, the city ordinance required a permit for the construction of the drainage culvert,, The contractor for the warehouse actually cut the concrete surface of the sidewalk and constructed the culvert. At the time the plaintiff received her injuries, the concrete covering over the metal sheet near the street where the plaintiff was walking had been broken, but the metal strip was intact. The plaintiff, walking nearest the street, stepped on this metal sheet which, because of rust and corrosion, gave way under her weight. The jagged edge of the metal severed the Achilles tendon, causing serious and permanent injuries.\nThe plaintiff's right to recover must have its foundation in negligence. \u201cNegligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff \u25a0under the circumstances surrounding them. Mattingly v. R. R., 253 N.C. 746, 117 S.E. 2d 844. The breach of duty may be by negligent act or a negligent failure to act. Williams v. Kirkman, 246 N.C. 510, 98 S.E. 2d 922.\u201d Moore v. Moore, 268 N.C. 110, 150 S.E. 2d 75.\nOrdinarily, a municipality is responsible for the condition of its sidewalks. G.S. 160-54; Hester v. Traction Co., 138 N.C. 288, 50 S.E. 711. However, one other than the municipality may be held liable for injuries caused by a defect in the sidewalk if he created the defect. Seagraves v. Winston (and Crawford Plumbing Co.), 170 N.C. 618, 87 S.E. 507; Childress v. Lawrence, 220 N.C. 195, 16 S.E. 2d 842; Hedrick v. Akers, 244 N.C. 274, 93 S.E. 2d 160. \u201c. . . (I)nso-far as pedestrians are concerned, any liability of owner, or of occupant of abutting property for hazardous condition existent upon adjacent sidewalk is limited to conditions created or maintained by him, and must be predicated upon his negligence in that respect.\u201d Klassette v. Drug Co., 227 N.C. 353, 42 S.E. 2d 411; McCarthy v. Shaheen, 264 Mass. 90, 161 N.E. 878; Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166, 88 A.L.R. 2d 363; Hughes v. City of New York, 236 N.Y.S. 2d 446; Boetsch v. Kennedy, 9 N.J. Misc. 390, 154 A. 194, 88 A.L.R. 2d 363.\nThe evidence at the trial was sufficient to permit the jury to, find the defendant created the defective condition which resulted in plaintiff\u2019s injuries. The Court\u2019s judgment of nonsuit because of failure to show defendant\u2019s negligence was error. However, defendant having pleaded plaintiff\u2019s contributory negligence, the judgment of nonsuit may be sustained if plaintiff\u2019s contributory negligence appears as a matter of law. Hedrick v. Akers, supra, citing many cases.\nDid the plaintiff prove herself out of court by showing her own contributory negligence as a matter of law? The evidence permits the inference that a 1%\" covering of concrete over the metal was broken, but the evidence also discloses, or at least permits the inference; that the metal covering was unbroken, its defective condition not ordinarily observable until it gave way under the plaintiff\u2019s weight. Bailey v. Asheville, 180 N.C. 645, 105 S.E. 326. The new evidence that defendant was responsible for the defective condition supplied the deficiency in the evidence as determined by our former opinion. The evidence presented jury questions. The nonsuit was improvidently granted. \u25a0\nReversed.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "John F. Montsinger; Deal, Hutchins and Minor by Boy L. Deal for plaintiff appellant.", "Hudson, Ferrell, Petree, Stockton, Stockton & Robinson by Nor-wood Robinson for defendant appellee." ], "corrections": "", "head_matter": "MARGARET ANN DUNNING by her Next Friend, WALTER F. SOWERS, v. FORSYTH WAREHOUSE CO., t/a STAR WAREHOUSE.\n(Filed 2 February, 1968.)\n1. Negligence \u00a7 1\u2014\nNegligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances in which they are placed, and the breach of duty may be by a negligent act or by a negligent failure to act.\n2. Municipal Corporations \u00a7 12; Negligence \u00a7 34\u2014\nWhile a municipality is ordinarily responsible for the condition of its sidewalks, G.S. 160-54, the owner or occupant of abutting property may be held liable for injuries resulting from a defect in the sidewalk created by it.\n3. Negligence \u00a7 34\u2014\nEvidence that defendant constructed a drainage culvert under a sidewalk adjoining its warehouse, that defendant placed over the excavation a covering of concrete supported by a thin metal sheet, that the concrete had become broken but that' the metal sheet was intact, although corr.oded, and that plaintiff\u2019s heel was injured when the sheet gave way urn, der plaintiff\u2019s weight, held sufficient to be submitted to the jury on the issue of defendant\u2019s negligence and insufficient to show that plaintiff was eontributorily negligent as a matter of law.\nAppeal by plaintiff from Gambill, J., February 13, 1967 Session, FoRsyth Superior Court.\nThe plaintiff, Margaret Ann Dunning,\u2019by her next friend, instituted a civil action on December 15, 1959 to recover damages for injuries allegedly caused by the negligence of Forsyth Warehouse Co., t/a Star Warehouse. The plaintiff alleged that on May 30, 1959 she was seriously injured when a metal covering over a drainage' culvert broke under her foot as she walked along the sidewalk on which the defendant\u2019s property abutted. The jagged edge of the broken metal severed her Achilles tendon, causing serious and permanent injury.\nIn particular, the plaintiff alleged the Star Warehouse (without a permit required by the Winston-Salem city ordinance) cut through and removed a narrow cross-section of the city\u2019s concrete sidewalk for the purpose of constructing a drainage culvert to carry surface water from its building under the sidewalk and into the city\u2019s drainage system. After the excavation the defendant placed over the culvert a thin metal sheet, and on top of this metel sheet poured a covering of concrete sufficient to make the surface conform to the undisturbed portion of the sidewalk. This concrete covering had a thickness of 1 to 1%\". The metal sheet, weakened by corrosion,' gave way when plaintiff stepped on it.\n\u2022 The plaintiff and two companions were walking along the sidewalk adjacent to the defendant\u2019s building. The plaintiff was nearest the curb when she stepped on the metal covering partially concealed by weeds or grass. Her weight caused the metal cover to give way. The City of Winston-Salem was made an additional defendant.\nAt the trial of the cause in January, 1961, Judge Crissman sustained motions for nonsuit and dismissed the action. This Court, on January 12, 1962, affirmed the judgment. The evidence and pleadings are analyzed and discussed in this Court\u2019s opinion which is reported in 256 N.C. 190.\nThe plaintiff instituted the present action on February 13, 1962. In addition to the evidence produced at the former trial, the plaintiff\u2019s new evidence disclosed that Blum Construction Co., as contractors for the defendant, installed the culvert in the manner heretofore disclosed, and according to the defendant\u2019s plans and specifications.\nAt the conclusion of the plaintiff\u2019s evidence, Judge Gambill entered judgment of involuntary nonsuit stating as grounds therefor: (1) the plaintiff\u2019s failure to show negligence on the part of the defendant, and (2) the evidence shows contributory negligence on the part of the plaintiff.\nThe plaintiff excepted and appealed.\nJohn F. Montsinger; Deal, Hutchins and Minor by Boy L. Deal for plaintiff appellant.\nHudson, Ferrell, Petree, Stockton, Stockton & Robinson by Nor-wood Robinson for defendant appellee." }, "file_name": "0723-01", "first_page_order": 759, "last_page_order": 762 }