
    E. W. EDWARDS v. CITY OF RALEIGH.
    (Filed 17 March, 1909.)
    1. Cities and Towns — Basement Stairways — Judicial Notice.
    Stairways to underground basements of buildings, leading down through openings in the sidewalks, are commonly. used in the business portions of cities, and of this the courts may take judicial notice.
    2. Cities and Towns — Sidewalks—Basement Stairways — Proper Construction — Negligence.
    It is not actionable negligence, per so. for a city to permit an opening for a basement stairway to a business building to remain on the inner part of its sidewalk, next to the building, which is 50 feet long and 3 feet 7 inches wide, when from either end steps the full width of the opening lead down a distance of 8 feet 7 inches, the lengthway is protected by a sufficient railing, and there is sufficient width of the sidewalk left for pedestrians.
    3. Cities and Towns — Sidewalks—Basement Stairways — Notice Presumed.
    Persons using the streets of a city should take notice of basement stairways to business buildings constructed with reasonable care along, its sidewalks for the purposes of commerce.
    4. Cities and Towns — Sidewalks—Basement Stairways — Municipal Powers — Lapse of Time — Presumptions:
    The authorities of a city, in the exercise of the power to regulate and control the streets, may grant the right to construct proper stairways along its sidewalks to the basements of business buildings, and the assent of the city to their construction and use will be presumed after a long lapse of time, in this case forty years.
    5. Cities and Towns — Sidewalks—Basement Stairways — Negligence — Evidence—Nonsuit.
    In an action for damages against a city for personal injuries received, when it appears that the plaintiff, being partially blind and feeling his way along with a stick, at night, fell into a well-lighted opening in the sidewalk, in which there was a properly constructed basement stairway, of which he knew, but to which he had' erroneously estimated the distance, no actionable negligence is established, and a judgment as of nonsuit upon the evidence should be sustained.
    ActioN tried before Neal, Jand a jury, at October Term, 1908, of Wake.
    
      Tbis was an action brought by E. ~W. Edwards against the city Of Raleigb for injuries sustained'from falling into an excavation, cellar or basement way on East Martin Street, in the city of Raleigh. At the conclusion of the plaintiff’s evidence the defendant moved to nonsuit the plaintiff, upon the ground that, according to his own testimony, he was guilty of such contributory negligence as bars a recovery. Motion allowed. Plaintiff excepted and appealed. The facts are fully stated in the opinion of the Court.
    
      Douglass & Lyon for plaintiff.
    
      William B. Jones and William, B. Snow for defendant.
   Brown, J.

The evidence, taken in the most favorable light for the plaintiff, establishes these facts: On 23 November, 1907, about 7 P. M., the plaintiff, while walking along the sidewalk of East Martin Street, in the city of Raleigh, stepped into the entrance to a basement way leading from the inner side of said street, next to the Citizens National Bank, by stairsteps down into the basement of that building.

The sidewalk is 10 feet 10 inches wide, from the building to the curb. The stairway opening is a part of the construction of the building, next to the wall and parallel with it. The length is some fifty feet, 3 feet 8 inches in width, and 8 feet 7 inches deep. The entire length of it is protected by a substantial ’iron railing. The west end and east end are open, with inclined steps the width of the aperture leading to the basement. At the entrance to the east end, where plaintiff stepped in and fell down the steps, there is a small board platform, slightly elevated and the width of the steps. From,the iron railing to the outer edge of the sidewalk is 6 feet 6 inches.

The photograph in evidence shows that the street is lighted by an arc electric light, hanging a short distance from this stairway and throwing its light upon it. There.is no allegation or proof that the street was not lighted. The plaintiff testifies that his vision is very defective — in fact, that he is partially blind — - that he cannot see above a certain distance, and when he passes a person he can see the lower part of the body only, and that very obscurely. Plaintiff was walking alone and using his umbrella for a guide. He knew of tbis basement stairway and bad ¡Dassed it frequently, and that there was an opening at the end where he stepped in, and that there was nothing across this opening. He states that he stepped in because he was not aware that he was so close to it.

We are of opinion that the motion to nonsuit was properly allowed, but not upon the ground upon which the learned counsel for defendant based it.

Where, in the solitude of the night, one suffers grievous injury from the culpable negligence of' another, under the circumstances in evidence in this case, the carelessness which would excuse the other and bar a recovery certainly ought to be of. a gross character and made apparent by direct or circumstantial proof. This reasonable principle is the controlling one in the judgment of Lord Ellenborough, in Weld v. Gas Light Co., 2 Eng. Com. Law, 78; and is approved by the Supreme Court of Pennsylvania, in Beatty v. Gilmore, 55 Am. Dec., 515.

While it is doubtful if there is any evidence of contributory negligence on his part, the plaintiff has failed to show an omission of duty upon the part of the city authorities which constitutes culpable negligence, and therefore the motion was properly allowed..

The evidence establishes the fact that this basement stairway has been in existence, and used in manner and form as it now. is, for about forty years; and while the evidence does not disclose how many similar structures there are in Raleigh, everyday observation teaches that it is a kind of entrance to underground basements that is in common use in Raleigh and all other cities that we have any knowledge of.

In invoking our every-day experience, we but follow the example of the Court of Appeals of New York, in Jergensen v. Squires, 144 N. Y., 285, where it is said by Chief Justice Aiv-drews: “It is a matter of observation that openings for cellar ways extending into the sidewalks in cities or villages in front of business buildings are very common. They afford access to the basements of such buildings and render them much more valuable for business purposes.” In that case it is held that the Legislature may grant the power to municipalities to authorize such structures, and that such authority, along with municipal assent to tbeir destruction and use, will be presumed after long lapse of time, wbicb in that ease was twenty years. Tbe Chief Justiee says: “It would be an unnatural inference that, in tbe city of New York, where so many of such openings are found, they exist by sufferance merely, and were tolerated but not permitted by tbe public authorities. In tbe absence of affirmative proof of permission, it should be implied, if there is nothing to disprove it, either in the character of the structure or in the actual circumstances disclosed. It is unreasonable to suppose that a usage so general and unchallenged did not have its origin in municipal assent.” The learned judge then proceeds to demonstrate that the authority to permit süch structures is derived from the general municipal authority to control and regulate the public streets, saying: “There, can, we think, be no doubt of the existence of this power.”

The right of municipal authorities, under their general power to regulate and control the streets, to authorize such entrances from them is recognized by the Supreme Court of Illinois, in Gridley v. Bloomington, 68 Ill., 47, and it is held that municipal assent will be presumed from long use. See, also, Nelson v. Godfrey, 12 Ill., 20; Fisher v. Thirkell, 21 Mich., 1; Dillon Mun. Corp., sec. 554.

It follows that if the corporate authorities of Ealeigh, under their general control of the streets, have power to authorize the construction and use of this stairway in manner and form as it has existed and been in use for forty years, the defendant cannot be liable to the plaintiff for his injuries because of its existence. The general use of such structures, protected as this is and opening on a stairway, and their public necessity and usefulness, rebuts any inference of negligence in permitting their existence.

In the case of Smith v. Leavenworth, 15 Kan., 86, in speaking of how such a structure must be guarded, the Court says: “If the cellar way is so guarded as to be perfectly safe, under ordinary circumstances, for persons traveling upon such street, the city would not be so guilty of negligence in such a case as to be liable for some unforeseen injury, resulting from fortuitous circumstances which could not, in the ordinary course of events, be. expected or anticipated as likely to occur.”

It is only a reasonable requirement of tbe jaw tbat persons using tbe streets should take notice of sucb structures as are necessary for purposes of commerce or for tbe convenient occupation of dwelling bouses, sucb as exterior basement stairs. Russell v. Monroe, 116 N. C., 727, quoting from Bueschung v. St. Louis, 6 Mo. App., 85.

Tbis last-cited case is exactly “on all fours” witb tbis, and in tbe opinion it is said: “Had tbis cellar way been a sheer precipitous descent, it would undoubtedly have been culpable negligence to have it without a railing at tbe east end, and exposed for a distance of two feet along tbe line of tbe sidewalk; but it does not appear to have been any Want of ordinary care in tbe owner of tbis building not to extend tbe railing on tbe south side past tbe bead of tbe steps, and not to have a gate at tbe east side; Tbe railing extended along tbe street to tbe point at which it might prudently besupposed that all probable danger of accident to one at all capable of taking care of himself would cease. Tbe sidewalks of a city cannot be made absolutely safe, and are not intended for tbe use of blind people.”

Again tbe Court says: “In an incautious moment tbe most prudent man might take a backward step, or a step sideways, and fall down any staircase; but it does not follow from tbis tbat a cellar entrance may not be built in a frequented street or tbat it must be guarded by a gate, and tbat tbe absence of sucb a guard is a want of ordinary care, which will subject tbe property owner to an action at the bands of anyone who falls down the, steps.”

~We could quote from numerous other authorities which sustain our view, but it would unnecessarily lengthen tbis opinion.

We feel warranted in saying tbat tbe overwhelming weight of authority exculpates tbe corporate authorities of defendant city from any imputation of negligence arising upon tbe admitted facts of tbis case.

Tbe judgment of tbe Superior Court is

Affirmed.  