
    ELLEN HOLTON v. TOWN OF MORGANTON.
    (Filed 15 May, 1912.)
    Cities and Towns — Streets and Sidewalks — Contributory Negligence —Burden of Proof — Ordinary Care — Specific Instructions — Appeal and Error.
    The plaintiff sued the defendant town for damages for an injury received in attempting to cross a ditch alleged to have negligently been left across the sidewalk. The court charged the jury correctly that the burden upon the issue of contributory negligence was upon the defendant to show that the plaintiff had not exercised ordinary care. An exception to the charge, that the court failed to declare and explain the law of contributory negligence, should have been taken by offering a special prayer containing the instructions desired.
    Appeal from Long, J., at Fall Term, 1911, of Bukke.
    This action is to recover damages against tbe town of Mor-ganton for personal injuries, sustained, as tbe plaintiff alleges, by tbe negligence of tbe defendant in permitting a ditcb or gully to remain open across one of its sidewalks.
    Tbe negligence is alleged in tbe complaint as follows:
    “That on or about 1 August, 1909, while plaintiff was walking along and on said sidewalk, hereinbefore set out and described, going from tbe depot to tbe home of her son, E. ~W. ITolton, near tbe intersection of said sidewalk with King or Church Street, which was tbe nearest and most direct route, street, or sidewalk to tbe borne of her son, as aforesaid, and when she reached a point about half tbe distance of said sidewalk, to wit, about 200 yards, going in the direction of tbe residence of her son, and in attempting to avoid tbe gullies and ditches on said sidewalk, as hereinbefore alleged, and trying to get from one side of said sidewalk, across a large ditcb in tbe middle of said ■ sidewalk, which was about 20 inches deep, to the other side of the sidewalk, on account of the dangerous, defective, and unsafe condition of said sidewalk, and without any negligence or fault on her part, her foot slipped into said ditcb or gully, throwing her violently to tbe ground and into tbe aforesaid ditch or gully, and breaking her left arm, so that she was rendered unable to use said arm for a long time, and was confined to ber room for a month or two; that she incurred heavy expense in employing a physician and buying medicine, and that she suffered and still suffers much pain, all to her great damage.”
    The defendant denied negligence, and pleaded contributory negligence as a defense.
    Evidence was introduced on behalf of the plaintiff and defendant on the issues of negligence and contributory negligence.
    The jury returned the following verdict:
    1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
    2. Did the plaintiff by her own negligence contribute to her own injury? Answer: Yes.
    3. What damage, if any, is plaintiff entitled to recover? Answer: Not answered.
    There is no contention on the part of the plaintiff that there was no evidence of contributory negligence. *
    Judgment was rendered in favor of the defendant, and the plaintiff excepted and appealed.
    
      R. L. Huffman and Spainhour & Mull for plaintiff.
    
    
      S. J. Ervin and Avery & Avery for defendant.
    
   Per Curiam.

There are ten exceptions in the record, seven of which are to rulings upon the first issue, which we need not consider, as this issue was answered in favor of the plaintiff.

The eighth exception is to a part of his Honor’s charge on the second issue, which, when considered alone, might be the subject of criticism; but if read in connection with other parts of the charge, it will be seen that the plaintiff’s contention was fairly submitted to the jury.

His Honor told the jury more than once that the burden of the second issue was on the defendant, and that the plaintiff would not be guilty of contributory negligence if she exercised ordinary care.

The ninth exception is that his Honor failed to declare and explain the law as to contributory negligence.

We think be did so, but if be did not, it was tbe duty of tbe plaintiff to request more specific instructions. Craft v. Albemarle Timber Co., 132 N. C., 151.

It appears, however, from tbe record, that all prayers for instructions tendered by tbe plaintiff, six in number, were given, two of wbicb relate to tbe second issue, and are as follows:

“5. Tbe court instructs you that if you find tbe plaintiff saw tbe ditcb in front of ber across tbe sidewalk, if sbe exercised reasonable care in stepping down into tbe ditcb, and you find tbis was done for tbe purpose of being careful, and, in doing so, you find- that sbe used reasonable care, and in ber effort to get out of tbe ditcb in a reasonably careful manner sbe slipped and fell and an- injury was thereby caused, then sbe would not be guilty of contributory negligence, and you should answer tbe second issue No.’
“6. Tbe court instructs you that though tbe plaintiff saw tbe condition of tbe sidewalk, it would not bar ber of a recovery or make ber guilty of contributory negligence unless tbe obstruction or defect in tbe sidewalk was of such a character that a prudent person in ber condition would not have attempted to cross tbe same, .and if you find that sbe used reasonable or ordinary care for ber own safety, then you would answer tbe second issue Nod ”

Tbe tenth exception is formal, to tbe refusal to set aside tbe verdict.

We see no reason for reversing the judgment.

No error.  