
    J. C. DUKE v. TOWN OF BELHAVEN.
    (Filed 26 September, 1917.)
    Municipal Corporations — Cities and Towns — Negligence—Defects in Streets —Contributory Negligence — Trials—Evidence.
    Upon evidence tending to show, and per contra, that the plaintiff’s injury was caused by the defendant town leaving for months a ditch across its street 18 inches deep and about the same width, into which his horse, hitched to a buggy, fell or stumbled when being driven about 7 miles an hour, after dark; that the place was unlighted, he could not see the ditch, or reasonably know of its existence: Held,, sufficient upon the issue of defendant’s actionable negligence, and the evidence of plaintiff’s previous knowledge of the ditch some months before, and his belief that it had since been fixed, under the circumstances, was also properly submitted to the-jury upon the issue of contributory negligence.
    Civil actioN tried before Daniels, J., and a jury, at April Term,. 1917, of Beaotoet.
    Tbe action was to recover damages caused by alleged negligence of defendant growing out of tbe bad condition of its streets. On denial of liability and plea of, contributory negligence, tbe jury rendered the-following verdict:
    1. Was plaintiff injured by tbe negligence of defendant, as alleged?' Answer: “Yes.”
    2. Was plaintiff's injury, if any, caused by bis own negligence contributory thereto ? Answer: “No.”
    •3. Wbat damages, if any, is plaintiff entitled to recover? Answer: “$1,000.”
    Judgment on tbe verdict for plaintiff and defendant excepted and appealed.
    
      Ward & Grimes for plaintiff.
    
    
      Tooly & McMullan for defendant.
    
   Hoke, J.

We bave carefully examined the record, and find no reason for disturbing the results of the trial. Tbe evidence on the part of plaintiff tended to show tbat on 27 December, 1913, between 7 and 8' o’clock, good dark and no light near the place, be was driving in a top-buggy along Railroad Street, in the town of Belhaven, about the poifit this street entered into Pantego Street, a much frequented street of the town, when bis horse blundered into an open ditch, or “chasm,”1 across the street 18 inches deep and about the same width, and as be jumped forward, be wheeled into Pantego Street, turned the buggy over, throwing plaintiff out and causing him serious and painful injuries from which be still suffers; tbat be'was a deputy sheriff and engaged in the performance of bis duty on the night in question and was driving along about 7 miles an hour, the usual gait of the horse; that it was too dark for him to note the ground ahead, and be did not know or bave any reason to believe any such obstruction was on the street ; tbat some months before, just after the September storm, be bad noticed tbat people were driving around towards the edge of the street, but be supposed tbat whatever damage bad been done by the storm bad been repaired by the town authorities. Tbe evidence was also tbat the buggy and harness were badly damaged at the time.

There was testimony on tbe part of defendant tbat there was no such ditch and chasm across tbe street as claimed by plaintiff; tbat there was a depression there, but so slight that the street authorities did not consider it in any way dangerous, and had therefore repaired other places which had been more badly damaged by the September storm.

This conflict of testimony on the material question in the case was submitted to'the jury under a clear and correct charge by his Honor, and they have decided the issue against the defendant.

On the second issue there was very little, if any, evidence tending to show contributory negligence. True, the plaintiff testified that several months before, just after the September storm, he noticed people were driving towards the edge of the street as if to avoid an obstruction, but that witness lived at Pantego town, miles away, had not seen the stre.et since, and supposed and had every reason to suppose that in that length of time the authorities would have repaired any serious damage to the street. On this question the case was tried out under the principles approved in a recent decision of this Court in Darden v. Plymouth, 166 N. C., 492, and the distinction pointed out in the opinion between that ease and Ovens v. City of Charlotte, 159 N. C., 332, and other cases chiefly relied on by defendant obtained equally here.

On the record, we are of opinion that the cause has been correctly and fairly tried, and the judgment in plaintiff’s favor is affirmed.

No error.  