
    RICHARD REVIS v. CITY OF RALEIGH.
    (Filed 24 March, 1909.)
    1. Cities and Towns — Negligence—Dangerous Sidewalks — Notice, Actual — Duty to Repair — Reasonable Time.
    In an action against a city for injuries received by defendant falling into a hole on the sidewalk, insecurely covered, there was evidence tending to show that the city had been notified of the unsafe and dangerous condition of the covering: Held, if the jury find that the city had notice of the dangerous condition, it was its duty to make the conditions safe, within a reasonable time after notice, and its failure to do so is .actionable negligence.
    2. Cities and Towns — Negligence—Dangerous Sidewalks — Notice Implied — Duty to Repair — Reasonable Time.
    A city is responsible in damages for an injury directly and proximately resulting from defects and pitfalls left .in the sidewalks of its streets, when by inspecting them with reasonable frequency they should have had notice thereof in time to have made them safe.
    3. Same — Questions for Jury — Burden of Proof — Instructions.
    The question of notice of dangerous places in the sidewalks, implied from a failure of the city to inspect its streets with reasonable frequency, is one for the jury, on the evidence; and a charge, in an action to recover damages for personal injury, that the burden was on the plaintiff to satisfy the jury by the greater weight of the evidence that the city, through its proper officers, knew or should have known of their existence within a reasonable time to make them safe and avoid the injury, is correct. ,
    
      ActioN tried before Neal, and a jury, at October Term, 1908, of "Wake.
    Tbe plaintiff sues to recover damages alleged to have resulted from injuries sustained by tbe negligence of defendant. He alleges tbat on or about 6 September, 1901, and for a long time theretofore, tbe city of Raleigb negligently permitted a deep and dangerous bole or well to remain in and upon tbe sidewalk on tbe north side of Davie Street, between Fayetteville and Wilmington streets, in said city, over and upon which many persons passed and repassed, and negligently permitted said bole or well to be insecurely covered with boards which bad become decayed and insufficient to bear up a person of ordinary weight, and negligently allowed tbe said bole or well to be and remain so covered as to mislead persons passing along and over tbe said sidewalk as to the-existence of tbe said bole or well beneath tbe said covering; tbat said city of Raleigb knew of tbe existence of said bole or 'well and said dangerous covering, or ought to have known of tbe same; tbat on or about 8 September, 1901, tbe plaintiff, Richard Revis, without any fault on bis part and not knowing of tbe existence of tbe said bole or well, in passing along and over said sidewalk, and being led to believe tbat tbe aforesaid covering which concealed said bole or well was boards lying on solid ground, stepped upon tbe said boards or covering and was suddenly and with great force precipitated into tbe bole or well beneath, and was painfully, seriously and permanently injured; tbat by reason of tbe injuries be received, as alleged, be suffered great bodily barm, mental anguish, etc.
    Defendant denied tbe material allegations of .the complaint, and alleged tbat plaintiff’s injuries were caused by bis own negligence.
    Tbe court, at tbe conclusion of tbe evidence, declined to submit tbe issue in regard to contributory negligence.
    There was evidence tending to show that, several months prior to the injury, a bole bad been dug for the purpose of placing a telephone pole on tbe edge of tbe sidewalk, about tbe curbing; tbat it was covered over with a plank (top of a goods box),which bad become rotten and insecure; tbat tbe grass bad grown around tbe bole; tbat on 6 September, 1907, plaintiff drove up to tbe sidewalk and got out of bis wagon for tbe purpose of going into a bouse. He thus describes tbe way in wbicb be was injured: “I drove a little past tbe door, on account of tbe rocks and brick lying there in front of tbe door, and I got out on tbe curbing from tbe wagon bub and put my foot on tbe paving rock and stepped out, * * * and as I did so I made not many steps, and tbe next tiling I knew I was in tbe bole; did not see any sign of tbe bole; did not bave any idea of a bole being there; never knew there was a bole there. It looked to me as a solid piece of plank on tbe ground; it looked to me no more than a piece of plank lying on tbe ground, or something of tbe kind, and I did not see any difference. I stepped there just as quick as I would anywhere else, because I bad no idea there was any bole there.”
    George L. Lane, a witness for tbe plaintiff, testified that “Tbe bole bad been there four or five months; tbe grass bad grown around it; a piece of old goods box bad been placed over it (very soft plank), and it bad been there long enough for tbe grass to grow around it.' * * * I called tbe attention of Mr. Pox>e, a policeman at tbe time — I do not know whom be was in company with, whether it was Mr. Beasley or some other man — and be said to me, U will attend to that; I will see tbe committee on tbe streets,’ or something like that. At tbe time Mr. Lee, of Lee & Broughton, came by and Mr. Pope pointed out tbe condition to him at tbe time.” This witness said that be saw tbe board a short while after plaintiff was injured. There was other testimony tending to corroborate this witness. There was evidence in regard to tbe character and extent of tbe injuries sustained by plaintiff.
    Defendant introduced J. A. Pope, who denied tbe testimony of Lane in regard'to notifying him of tbe bole and tbe condition of tbe plank over it;
    Tbe court refused to submit an issue in regard to contributory negligence. Defendant excepted.
    His Honor, among other instructions in regard to the duty of defendant to keep its streets in safe condition and proper repair, said: “Proper repairs implies, also,, all obstructions or dangerous pits or boles or other perilous places on tbe streets or sidewalks of tbe city should be protected by proper barriers or covering. That is a duty imposed upon every city and town in North Carolina by statute, and it is tbe law of tbe land. Now, tbe court also charges you that if tbe jury shall find from tbe evidence that tbe defendant permitted an opening in tbe sidewalk, insufficiently covered and protected, on one of its principal streets, upon which there is much travel, no matter for bow long a time tbe same has remained in said unsafe condition, or for such length of time as tbe city authorities should have known of its existence, or if for any length of time, with tbe actual knowledge of tbe authorities of said city, and tbe plaintiff stepped or fell into said opening and was injured thereby, tbe jury should answer tbe first issue ‘Yes.’ Tbe city does not warrant that tbe condition of its sidewalks shall be at all times absolutely safe. It is only responsible for negligent breach of duty, and to establish such responsibility is not sufficient to show that a defect or dangerous obstruction existed and an-injury has been caused thereby. The burden is upon the plaintiff to satisfy the minds of the jury by the greater weight of the evidence that the proper officers of the city knew or by ordinary diligence might have discovered the defect or dangerous obstruction, and also that the character of the same was such that injuries to persons using the sidewalk, in the exercise of ordinary care and watchfulness, might reasonably be anticipated. If the jury shall find from the evidence that the city did not create or cause the opening in the sidewalk nor authorize the same to be 'done, then the city would be liable, if at all, only for negligently permitting the same to exist in a dangerous condition on the public streets. It is not negligence, per se, for the city to allow a covered hole upon its sidewalk. It is for the jury to determine whether or not the character of the place was such that injuries to travelers thereon might reasonably be anticipated, and whether or not the city was negligent in allowing and permitting the same to exist; and in arriving at a conclusion upon this question the jury should take into consideration the nature and character of the place, its size, location and'the character and sufficiency of the covering. The burden is on the plaintiff to show either that the covered hole was originally dangerous — that is, when it was first covered — and that injuries to the public might be reasonably anticipated by the city authorities, or that it had thereafter become so, long enough before the accident for the authorities to have known it, so as to impose upon them the obligation to put it in a proper condition. If the jury shall find from the evidence that some proper official of the city had actual notice of the existence of the hole, and if the jury shall further find from the evidence that at the time of such notice there was a reasonably secure and strong covering over the hole, then the city could only be liable, if at all, for a failure to exercise ordinary care to keep the same in a safe condition.” ,To these instructions defendant excepted. He further told the jury that “If they permitted that hole to stay there so long as .one week without an inspection, and a man went along there — this plaintiff went along there— and fell in, the court charges you that that would be negligence for which the city of Raleigh would be liable, because, the court charges you, that it is the duty of .the city of Raleigh, the defendant in this action, to have their officers and agents to inspect the public thoroughfares of the city over which people pass and repass, and where they have a right to assume that they may do so with safety, and if they permit dangerous excavations to stand for so long a time as a week, the court charges you that would be negligence.” Defendant excepted. Verdict for plaintiff. Motion for new trial; denied. Defendant duly assigned errors and appealed.
    
      Douglass & Lyon for plaintiff.
    
      W. B. Snow and W. B. Jones for defendant.
   Connor, J.,

after stating the case: "We concur with his Honor that there was nQ evidence of contributory negligence. The answer alleged that plaintiff contributed to his injury by his negligence and carried the burden of sustaining the allegation. It having failed to show either by introducing testimony or eliciting anything from plaintiff’s evidence to make good its averment, the issue was properly withdrawn. It is elementary that the court should not submit an issue where there is no evidence to sustain a'finding for the parly who carries the burden of proving it. The ruling of his Honor gives to the defendant the benefit, upon review, of having all of the testimony, with all inferences, most favorable to it, taken as true, or as if plaintiff bad demurred to tbe evidence in tbis respect. Considered in tbis way, we find no evidence of tbe truth of defendant’s averment.

While much was said in tbe instruction to tbe jury>and in tbe argument in tbis Court in regard to tbe alleged negligence of defendant in permitting tbe bole for tbe telephone pole to be dug on or near tbe sidewalk, tbe decision turns upon tbe question whether there was actionable negligence in failing to provide and maintain a safe and secure covering for1 it. Tbe general instruction of bis Honor in regard to tbe duty of tbe defendant to keep tbe streets and sidewalks in a safe condition for persons traveling on them is in strict accordance with and very largely in tbe language of tbe opinion of Mr. Justice Hohe, in Fitzgerald v. Concord, 140 N. C., 110, which is fully sustained both by reason and authority. Tbe plaintiff contends that in either of two aspects of tbe evidence be is entitled to recover: (1) That defendant’s officers bad actual notice of tbe bole in tbe street, and of the unsafe and insecure condition of tbe covering over it, long before tbe plaintiff sustained tbe injury; that „the opportunity to repair was ample and tbe duty imperative. (2) That if it hás failed to convince tbe jury that defendant bad actual notice of tbe conditions — they bad existed for so long a time prior to tbe time of bis injury that it was its duty to have known them by inspection and examination of tbe streets — that by construction of law it was fixed with notice, imposing tbe duty of repair.

In considering tbe first view, if, as testified by tbe witness Lane and tbe witnesses corroborating -him, tbe defendant’s officers were notified — had their attention called to tbe unsafe and dangerous condition of tbe covering over tbe bole — and it was’ their manifest duty to promptly remove it, either by filling up tbe bole or placing a sound and safe covering over it,- one at least sufficiently strong to have borne tbe weight of a man — -in tbis view of tbe case tbe liability of tbe defendant is clear. “Upon notice of defects and dangers in tbe streets, tbe city must remove them within a reasonable time, and failure to do so is negligence.” Jones v. Greensboro, 124 N. C., 310; 15 Am. and Eng. Enc., 477.

We are unable to perceive any valid excuse for the failure to repair the covering or fill up the bole, if defendant bad notice, as testified by Lane. If, however, the city bad no actual notice of the dangerous condition existing, the plaintiff must sbow tbat by the exercise of tbat degree of care and the performance of the duty of inspection of the street it would bave known it. Tbe city is not permitted to neglect the duty of reasonably frequent inspection of its streets, and wben, by reason of defects and pitfalls or defective coverings of culverts, boles, etc., some one is injured, avoid liability by pleading ignorance of the conditions producing the injury. In tbis view of the ease the question is to be submitted to the jury and in the light of all the evidence they shall say whether a reasonable time has elajjsed between the origin of the dangerous condition and the injury to bave enabled the city authorities to bave discovered and removed or remedied it. No arbitrary rule of law in tbis respect can be laid down by the court. “There is and can be no fixed time from which' notice may be inferred. A reasonable time in one instance may not be in another.” Smith Mun. Corp., see. 1302. “On the question of notice, implied from the continued existence of the defect, no definite or fixed rule can be laid down as to the time required, and it is usually a question for the jury on the facts and circumstances of each particular case, giving proper consideration to the character of the structure, its material, the time it has been in existence and use, the nature of the defect,” etc. Fitzgerald v. Concord, supra,; 15 Am. and Eng. Enc., 483 ; 1 Sherman and Red. on Neg., 643. His Honor drew tbis distinction in saying to the jury, “If the defendant permitted an opening in the sidewalk, insufficiently covered and protected on one of its principal streets, upon which there is much travel, no matter bow long the same has been in an unsafe condition, or for such length of time as the city should have known of its existence, or if for any length of time, with the actual knowledge of the authorities,” etc. While tbis language is not so clear as might be desired, it is evident from tbat which immediately followed tbat the jury could not bave been misled. He said: “Tbe burden is upon the plaintiff to satisfy the minds of the jury by the greater weight of the evidence tbat the proper officers of the city knew or by ordinary diligence might bave discovered the defect or dangerous obstruction, and also that the character of the same was such that injuries to persons using the sidewalk, in the exercise of ordinary care and watchfulness, might have been anticipated.” This language is absolutely free from objection. He again said that the burden was upon the plaintiff to show the dangerous conditions, and that they had existed long enough before the accident for the authorities to have known it, so as to impose upon them the obligation to put it in a proper condition. To this point in the instruction no exception can be sustained. His Honor, in conclusion, and by way of illustration, said: “If they permitted that hole to stay there as long as one week without an inspection, and a man went along there — and this plaintiff went along there — and fell in, the court charges you that would be negligence, for which the city of Raleigh would be liable.” We do not concur with this language. The court cannot, certainly in a case like this, say as a matter of law that the failure to inspect this street for a week was negligence. The period of time within which inspection of a street must be made is dependent upon the facts in each case, and should be left to the jury; it must be reasonably frequent, but' •what is so depends upon a number of conditions, varying in different cases. There was no evidence that only a week had elapsed since the hole was dug or the plank had become insecure; all of the evidence indicated a much longer time. Certainly the fact that a hole had been dug in the-sidewalk, or near to it, four or five months before the accident, and that it was covered by a piece of goods box — “soft plank” — long enough for “the grass to grow around it,” excludes the suggestion that only a week had elapsed between its placing and the injury to plaintiff.

In view of the entire charge, we cannot think that the jury could have been misled by the language to which exception is taken. It is the well-settled rule of all appellate courts to read and construe the entire charge of the court and deal with it as a whole. It is not permissible to make disconnected excerpts and seek to find reversible error. To do so would frequently result in new trials where it was manifest that no prejudicial error was committed or the jury misled. The plaintiff’s counsel insisted that upon tbe whole evidence he was entitled to recover. It is not clear but that an instruction, properly framed, based upon this review, would have been correct.

We have considered the other exceptions made by defendant, and find no error in his Honor’s ruling in respect to them. Upon an examination of the entire record we find no reversible error. It must be so certified.

No Error.  