
    JAMES A. AUSTIN v. CITY OF CHARLOTTE.
    (Filed 11 December, 1907).
    Negligence — Contributory Negligence — Streets — Safe Condition— City’s Liability.
    PlaintifC knew that a certain street had been excavated in front of a house he was attempting to visit on a dark night, without a lantern, by going across adjoining lots near the street, and was injured, while feeling his way along in the dark, by the embankment giving away and his falling into the street. At the time of his fall he was endeavoring to go around the end of a hedge and holding to it. In an action against the city for damages, owing to alleged negligence in not keeping its streets in proper or safe condition: Held, (1) that the defendant was not required to see that it was safe for plaintiff to traverse a private lot, and was not liable; (2) that the acts of plaintiff amounted to contributory negligence to bar recovery.
    Civil action, tried before Ferguson, Jand a jury, at September Term, 1907, of tbe Superior Court of Mecklen-burg County.'
    The plaintiff is a physician, and on the night he was injured he had started to the house of his patient, at No. 1006 Nortli Brevard Street, in the city of Charlotte. Brevard Street had been excavated, and the houses on the east side, including' the house of his patient, were left standing from 10 to 12 feet above the level of Brevard Street. ' The doctor got off the street car at the intersection of Brevard and Thirteenth streets, there left Brevard Street and ascended some steps cut out of the bank, crossed Thirteenth Street and started to- his patient’s house across the intervening yards. After crossing Thirteenth Street and passing into Yandle’s yard, which was the first yard after leaving Thirteenth Street, he struck a hedge of evergreen about midway between the house and the street. It was a dark-night and the plaintiff could not see. He knew that Brevard Street, in front of Yandle’s yard, had been excavated, and he knew that the bank on the east was very steep, if not perpendicular. When he struck the hedge be moved, along the hedge, not towards the bouse, where there could have been no danger, but towards the street, which, he knew, had been excavated. When he fell he was sliding his feet along so as to feel his way and not fall into the excavation, and at the same time he was holding on to the hedge as a protection and trying to pull himself around the hedge and get into the sidewalk, which he thought was there. At this point the ground gave way under the plaintiff and he fell into Brevard Street.
    At the close of plaintiff’s evidence the court granted the defendant’s motion for nonsuit,’ and plaintiff appealed.
    
      Tillett & Guthrie and B. N. Austin for plaintiff.
    
      Pharr & Pell and Hugh W. Hams for defendant.'
   ClabK, C. J.

The plaintiff was not injured by traveling along the street or sidewalk, nor by any defect in the street or so near the street as to make it dangerous for travel. In fact, the plaintiff was not traveling the street at all. The trouble was, not that Brevard Street was dangerous to travel, but that Tandle’s lot was. The city was not responsible for injury sustained by one not traveling its streets. It was not required to see that it was safe for plaintiff to traverse a private lot.

In Scranton v. Hill, 102 Pa. St., 378, the plaintiff was passing over a bridge along a public highway and, supposing that he was clear of the bridge (it being in the nighttime), turned aside to enter a path which left the highway, and,’ unfortunately, he turned from the highway before he had-reached the path and fell over the edge of the bridge. The Court in that case decided that the following instructions should have been given: “It being the undisputed testimony in this case that the plaintiff elected to leave the traveled street for the purpose of passing over an adjacent lot without the limit of the highway that, though the right to pass over such adjacent lot may exist so far as to protect tbe plaintiff from trespass, yet tbe safety of tbe way in wbicb be passed to such adjacent lot is at bis own peril; that tbe defendant is not under any legal obligation to keep sucb passage to an adjacent lot in safe condition, and, therefore, tbe plaintiff cannot recover.”

In Bunch v. Edenton, 90 N. C., 431, cited by plaintiff, tbe person was traveling along tbe sidewalk and fell into an adjacent pit. Here, plaintiff was traveling through a private lot ' and fell into tbe street. Besides, tbe plaintiff was injured by bis own negligence. He says that be knew that Brevard Street bad been excavated, that be bad passed there a short time before, and tbe work was then going on; that on this night be inquired of a street-car conductor if there were steps up tbe bank at Starnes’ bouse; that when be got off tbe car be went up tbe bank, twelve or fifteen feet high, out of Brevard Street, at tbe railroad; that when be struck tbe hedge in Yan-dle’s lot be turned toward tbe street and went along tbe hedge, feeling bis way with bis feet. Evidently, at that moment be was aware of tbe presence of tbe danger. Thus tbe plaintiff, on a dark night, without a light, was feeling bis way toward tbe point of danger and taking bis chances on being able to get around tbe dangerous point without barm. Even though tbe sidewalk bad been there — and as to this be says be did not' know, but supposed it was there — -yet, even then, be knew he was taking chances with danger, because, even with tbe sidewalk, be was dangerously near tbe excavation, and be was aware of this, because be says be was sliding bis foot along tbe ground, and says that be hoped to pull himself around tbe hedge by bolding on to tbe hedge, and this statement is borne out by tbe natural fact that be pulled down a part of tbe hedge with him when be fell. It was a case of tbe plaintiff’s knowing of tbe danger and taking bis chances -to escape. It would hardly be contended that if this bad occurred in tbe daytime tbe plaintiff would not have been guilty of negligence. Much more was it negligence for him to take such chances in the nighttime, when he could not see.

In Walker v. Reidsville, 96 N. C., 382, the town of Beids-ville had made an excavation within about fifteen feet of the grounds around the market house, which grounds were 'used as a public thoroughfare. There were no lights or barriers around this pit, or excavation. The plaintiff started to his home in the night, and, the grounds around the market place being crowded with people, he started across the lot where the pit was, and fell in and was injured. He stated that, while he knew the pit was there, he was thinking of something else at the time and forgot about the pit. The Court said: “In that case the party injured, in his own wrong, helped to bring the injury upon himself. In a just sense, he injured himself.” The Court said, further: “It seems to us that there can be no reasonable question that the plaintiff himself negligently contributed to the severe injury of which he complains, and that his negligence was the direct, helping cause of it. He well knew of the pit, its dangerous character, where it was, and of the passway, fifteen feet broad, between it and the market house, out of which he passed. He did not need to go near it at all; he went out of his usual way in doing so. He did not, by mere accident, fall into it as he passed along by it; he unnecessarily and carelessly walked into it. Although he no doubt suffered greatly, he is not excusable for forgetting it. A reasonably prudent and careful man would not forget the presence of such danger in his immediate neighborhood — one that he had seen and observed every day for more than a fortnight and but a few hours before he’ received the hurt. He was bound to act upon his information and use ordinary care and prudence in shielding and protecting himself from what he knew to be a menacing danger to every one who passed near it. He forgot, and failed to be careful, at his peril and in his own wrong. Parker v. Railroad, 86 N. C., 221; Railroad v. Houston, 95 U. S., 697; Dillon Mun. Corp., see. 789; Beach Cont. Neg., 40.” In this ease the plaintiff knew of the condition of the street, but, by a mistake, went towards it instead of towards the house. He trusted to finding his way at night over a private lot.

The judgment of nonsuit is

Affirmed.  