Webster v. City of Charlotte

Stacy, C. J.

Tbe plaintiff was injured on a public sidewalk in tbe city of Charlotte — tbe east sidewalk on South A Street. In tbe middle of tbe block there is a short strip of pavement, which ends about midway *323 tbe block. Opposite the north end of this pavement, there was a slab missing from the curbing. This caused the dirt to wash away, leaving a drop of four or five inches from the end of the pavement to the dirt portion of the sidewalk. The condition had existed for a year and a half prior to plaintiff’s injury. Plaintiff alleges that he was injured as a result of the defect in the sidewalk.

Under the decisions in Bell v. Raleigh, 212 N. C., 518 , 193 S. E., 712 , and Radford v. Asheville, 219 N. C., 185 , 13 S. E. (2d), 256 , it would seem that the evidence was sufficient to carry the case to the jury on the issue of negligence.

The defendant contends, however, that the judgment of nonsuit should be sustained (1) because of the failure of the plaintiff to give notice of his claim within six months of his injury, as required by the defendant’s charter, and (2) for that the notice given was insufficient.

Neither of these questions was mooted in the court below, and the case was cut short by the court’s intimation that he did not think the plaintiff could g.et along on the issue of negligence. The situation is somewhat analogous to that appearing in the case of Morgan v. Benefit Society, 167 N. C., 262 , 83 S. E., 439 , where it was thought a kindred error may have disadvantaged the appellant in making out his case.

Midgett v. Nelson, 212 N. C., 41 , 192 S. E., 854 . But however this may be, there has been no ruling in the court below on either question. See Ex parte Kumezo Kawato, October Term, 1942, .U. S., ., decided 9 November, 1942.

Undoubtedly, we have decisions to the effect that in the absence of some valid excuse (Terrell v. Washington, 158 N. C., 281 , 73 S. E., 888 ;

Hartsell v. Asheville, 166 N. C., 633 , 82 S. E., 946 ; Annotation, 109 A. L. R., 975), compliance must be shown with the provisions of a city charter requiring notice of claim as a condition precedent to the institution of an action against a municipal corporation for the recovery of damages.

Trust Co. v. Asheville, 207 N. C., 162 , 176 S. E., 257 ;

Foster v. Charlotte, 206 N. C., 528 , 174 S. E., 412 ;

Dayton v. Asheville, 185 N. C., 12 , 115 S. E., 827 ;

Pender v. Salisbury, 160 N. C., 363 , 76 S. E., 228 ;

Oresler v. Asheville, 134 N. C., 311 , 46 S. E., 738 . The condition is one precedent to bringing action, but it is not essential that the action be brought within the time prescribed for giving notice of demand.

Terrell v. Washington, supra.

And in this jurisdiction, inability to comply strictly with the requirement has been recognized as an exception to the rule.

Hartsell v. Asheville, supra; Foster v. Charlotte, supra.

In these respects, the usual-charter provision differs from the wrongful-death statute, C. S., 160. Compare Dockery v. Hamlet, 162 N. C., 118 , 78 S. E., 13 .

The sufficiency of the notice given may be determined by the requirement of the city charter. This provides that the notice shall be in *324 writing, stating when and where tbe injury occurred, and tbe amount of damages claimed therefor. It need not be drawn “with the technical nicety necessary in pleadings.”

Graham v. Charlotte, 186 N. C., 649 , 120 S. E., 466 .

The plaintiff is entitled to another day in court.

Reversed.