Burns v. City of Charlotte

At the close of plaintiff’s evidence and at the close of all the evidence the defendant made motions in the court below for judgment as in case of nonsuit. C. S., 567. These motions were overruled, and in this we think there was error. There is not such a defect in the sidewalk as we find in Gasque v. Asheville, 207 N. C., 821. Conceding, but not deciding, that there was a material defect in the inclined driveway, now closed for driveway purposes, the injury occurred about 10:30 in the morning. Plaintiff testified, “It was a clear day, the sun was shining.” She further testified, “There was nothing obstructing my view of this driveway.”

*50The injury to plaintiff was a sad misfortune. The law required plaintiff to use due care — such care as an ordinarily prudent person would have exercised under such circumstances. She saw, or in the exercise of due care ought to have seen, the nature of the driveway she was to cross. She testified, “That street is wide enough for two people to walk on and stay out of danger.” If one way is safe and the other dangerous, and a person knew, or by the exercise of due care ought to have known, of the dangerous way and goes that way, the person is guilty of contributory negligence and cannot recover. Groome v. Statesville, 207 N. C., 538.

For tbe reasons given, tbe judgment in tbe court below is

Reversed.