
    IRA W. HARDY v. WEST COAST CONSTRUCTION COMPANY and CITY OF KINSTON.
    (Filed 17 October, 1917.)
    1. Municipal Corporations — Cities and Towns — Dangerous Conditions — Neg- . ligence — Implied Notice.
    Municipal authorities are charged with the duty of keeping its streets in a reasonably safe condition, and to exercise a careful supervision over them to that end, and while having street improvements made to see to it that proper lights are placed at night at excavations, piles of dirt and other obstructions incident to such work, so as to warn those passing of the dangerous conditions there.
    
      2. Same — Contracts—Lights.
    .A contractor to make street improvements for a municipality is liable for his negligence in not placing lights at night to warn' the users of the street of dangerous conditions existing there ; and where both the contractor and the city have had ample notice to put up the proper lights, and fail to do so, they are each liable to one who has been injured in consequence of their neglect.
    3. Same — Joint Liability.
    Where a contractor for making street improvements for a municipality digs a ditch across one of its streets, and the location is so filled by a heavy rainfall during the day that the ditch is completely’ covered and concealed by the water standing there, and it appears that a red light is customarily placed at such points of danger at night, and that a white light indicates that vehicles are to be driven around it: Held,, a person driving around the white light and, in the absence of the red light, falling into the ditch, may maintain an action against both the contractor and the city to recover damages for a personal injury resulting from the negligent acts, when ample notice had previously been given to the city of the absence of the light.
    4. Municipalities — Cities and Towns — Speed Ordinances — Negligence—Proximate Cause. .
    Where a person driving at night on a city’s street is injured by the negligence of the defendant in not having the customary red light to warn persons traveling thereon of the dangerous condition of the street, the fact that he was violating an ordinance regulating the speed of vehicles will not bar his recovery on the ground of contributory negligence, in the absence of evidence that this was the proximate cause.
    Civil actioh, tried before Lyon, J., at February Term, 1917, of LeNoib, upon those issues:
    1. "Was the plaintiff’s person and automobile injured .by the negligence of tbe defendants? Answer: Yes.
    2. Did the plaintiff, by bis own negligence, contribute to bis own injury and the injury to his automobile? Answer: No.
    3. What damages, if any, is plaintiff entitled" to recover of the defendants on account of injury to his person ? Answer: $1,000.
    4. What damages, if any, is plaintiff entitled to recover of defendants on account of injury to his automobile? Answer: $150.
    From the judgment rendered, defendants appealed.
    
      G. V. Gowper, R. A. -Whitaker, and T. C. Wooten for plaintiff.
    
    
      A. D. Ward and Rouse & Bouse for Construction Company.
    
    
      Loftin, Dawson & Manning for City of Kinston.
    
   Brown, J.

The first four assignments of error are directed to the right of the plaintiff to recover, in any view of the evidence.. All the others are alleged errors in the charge .of the court.

Tbe evidence of tbe plaintiff tends to prove tbat tbe defendant company was improving tbe streets of tbe city of Kinston under a contract with the city. It bad been working on tbe day in question at tbe intersection of Washington and McLewean Streets, in order tbat a gas pipe might be laid. During tbe night it rained very bard. About 7 o’clock p. m. a pipe burst at tbe point named and tbe water flooded tbe street. Both defendants, or their representatives, received this notice, and tbe city sent one Wiggins there, who drove a stick in tbe pipe. One Ruken-baker, tbe representative of tbe construction company, went there about 7 o’clock. Seeing Wiggins there, be did nothing more. It further appears tbat during this work, and as a usual custom, a red light was placed as a warning of danger where any point in tbe street, was left in .an unsafe condition, and that a white light was merely an indication tbat there was some object at tbat point, and tbat tbe vehicles should go around it, all of which was well known and understood by tbe citizens and tbe defendants. Witnesses for tbe plaintiff testified tbat there was no red light at tbe excavation, but there was a white light on a pile of sand some distance from tbe point where tbe injury took place. Although tbe two men were sent to tbe place where tbe injury occurred at 7 o’clock tbat night, it appears tbat, even in tbe condition of tbe street at tbat time, no red light or other danger signal or warning to persons not to pass was placed at that' point. Tbe rain accumulated to such an extent later in tbe night tbat water completely covered tbe street at this point, so that there was no difference in appearance of tbe ditch and tbe other part of tbe street, and no one traveling tbe street could tell tbat there was a ditch or excavation.

Plaintiff, a physician, was returning home in bis automobile. He testifies tbat be knew tbe work was going on, and tbat be looked cautiously down East Street and, seeing no red light, drove ahead at anywhere from 10 to 15 miles per hour. He observed tbe white light on tbe sand pile and drove around it, according to regulations. His automobile jolunged into tbe deep excavation, completely bidden by water, and seriously injured plaintiff and damaged tbe machine.

Taking these facts to be established, we can see no ground for directing a nonsuit or for charging tbe jury tbat there is no evidence of negligence.

It is elementary tbat tbe municipal authorities are charged with tbe duty of keeping tbe streets of tbe municipality in a reasonably safe condition, and to tbat end they are required to exercise a careful supervision over fhem.

Such authorities must exercise such reasonable supervision over street improvement work as to see to it tbat proper lights at night are placed at excavations and piles of dirt and other obstructions incident to such work.

This particular city bas bad a similar experience before, and bad to pay for the negligence of its servants in tbis respect. In Kinsey v. City of Kinston, 145 N. C., 106, it is beld: “It is the positive duty of municipal authorities to beep the public streets in a reasonably safe condition for the use of pedestrians. Tbe city is liable in damages to the plaintiff, wbo, being accustomed to use its sidewalk in going to and from ber work, passed in the morning, and, repassing in the evening about 8 o’clock, was injured by falling into a ditcb wbicb bad been dug across the sidewalk in the intervening time by a contractor for a private person, with notice to and permission of the city, and left without lights, warning signals, or signs at, near, or upon the ditcb.”

“While a private person is liable to pedestriaUs for bis negligence in permitting a ditcb dug across tbe public sidewalk of tbe city to remain after nightfall without lights or other warnings, tbe city is also liable for negligence, when, after granting tbe permit, it fails to exercise proper supervision and inspection.”

To same effect is Carrick v. Power Co., 157 N. C., 379, where it is beld that a municipality cannot absolve itself from liability to supervise tbe streets when work likely to be dangerous is done on them by an independent contractor. We think these cases settle tbe liability of both defendants upon tbe facts presented here.

It is contended by .the defendants that tbe plaintiff is guilty of contributory negligence, upon bis own evidence, and that tbe court erred in not so bolding. Tbe defendant contends that plaintiff was driving over 10 miles an hour at tbe time be fell into the ditcb, in violation of a city ordinance. Plaintiff says be was driving 10, 12, or 15 miles an hour. He seems unable’ to give tbe rate of speed with any accuracy. But, assuming be drove over 10 miles an hour, it does not follow that tbe unlawful speed was tbe cause of bis injury. Plaintiff’s negligence would not bar recovery, unless it was tbe proximate cause of tbe injury. Clark v. Wright, 167 N. C., 646; Sheppard v. R. R. 169 N. C., 239.

Tbe court properly instructed tbe jury that if there was excessive speed, and that was tbe proximate cause of tbe injury, to find there was contributory negligence.

According to plaintiff’s evidence, be would have driven into tbe ditcb in any event and been injured, whether driving 10 or 15 miles per hour.

Tbe real cause of tbe injury was the failure to display tbe red danger light at tbe point where tbe excavation crossed tbe street.

We have examined tbe charge, and deem it unnecessary to discuss tbe several exceptions to it. In our opinion, tbe case was presented clearly and fairly to tbe jury.

No error.  