#### RICHARD W. SPEAS By His Next Friend, E. G. SHUGART, v. CITY OF GREENSBORO and LINDSAY S. WALL.

(Filed 22 February, 1933.)

1. Municipal Corporations E c — It is duty of city to keep streets in reasonably safe condition.

It is a positive duty of a city to keep its streets in a reasonably safe and suitable condition, and it may not escape liability for its negligent failure to do so on tbe ground that such duty is a governmental function.

2. Same — Evidence that city liad failed to use due care in respect to lighting traffic signal held sufficient to be submitted to jury.

In this action to recover for personal injuries sustained in a collision of an automobile with a traffic signal maintained by a city at a street intersection there was evidence that the lights of the signal were not burning at the time of the accident, and that the lights had not been properly lighted for a long period of time: *Held,*notice of such defects may be implied, and the evidence was sufficient to be submitted to the jury on the question of whether the city had used due care to provide adequate lights.

3. Same — Negligence of driver of car held not to constitute intervening negligence.

There was evidence that the driver of the car in which the plaintiff was riding as a guest was negligent in driving into a traffic signal at a street intersection, and that the city was negligent in failing to use due care in respect to the lighting of the traffic signal: *Held,*the negligence of the driver was not intervening negligence as a matter of law, since the probability of such injury should have been within the reasonable contemplation of the city.

*2404. Highways B —Guest held not guilty of contributory negligence as matter of law in failing to keep look-out for own safety.

The plaintiff was riding as a guest in an automobile owned and driven by another. There was evidence that the plaintiff could not have seen through the wind-shield in front of him on account of rain thereon. The car crashed into a municipal traffic signal and the plaintiff brought suit against the city and the driver: *Held,,*the plaintiff was not guilty of contributory negligence as a matter of law in failing to keep a look-out for his own safety.

5. Appeal and Error J e—

Instruction in this case held not to contain reversible error considered in the light of the evidence upon the trial.

6. Pleadings E a — Trial court has discretionary power to allow amendment.

It is within the discretionary power of the trial court to allow the filing of amended or supplemental complaints, and an amendment of a pleading may be allowed after verdict to conform the allegations to the proof. O. S., 547, 551.

7. Highways B g — Defendant’s testimony held to establish negligence as matter of law.

Where the driver of a car in which the plaintiff was riding as a guest testifies that he could have seen an object twenty feet away under the circumstances, and that he could have stopped the car in five or six feet, and all the evidence tends to show that he drove the car into a traffic signal at a street intersection, his testimony establishes negligence on his part as a matter of law.

Appeal by defendants from *Oglesby, J.,*at March Term, 1932, of Guileoed.

No error.

Tbis is an action for personal injury alleged to bave been caused by tbe negligence of tbe defendants.

At tbe center of tbe intersection of Greene and Gaston streets tbe city of Greensboro maintains a traffic device known as a “silent policeman.” It consists of a concrete block approximately three feet Avide and tAvo feet bigb anchored to tbe street pavement and a metal base projecting upward from tbe block and supporting an electric signal with alternating red and green lights. On the morning of 6 December, 1930, tbe plaintiff was riding in a Ford roadster driven by tbe defendant Wall. It bad one seat and tbe curtains were up. Tbe car when driven into tbe intersection of Greene and Gaston streets struck tbe traffic device, and tbe plaintiff Avas seriously injured.

Tbe jury found that tbe plaintiff’s injury bad been proximately caused by tbe negligence of each of tbe defendants and that tbe plaintiff bad not been negligent, and assessed tbe damages.

*241Judgment for the plaintiff; appeal by the defendants upon assigned error.

*Manly, Hendren & Womble for plaintiff.*

*Andrew Joyner, Jr., for city of Greensboro.*

*Sapp & Sapp for Lindsay W. Wall.*

Adams, J.

The record is voluminous but the controversy involves only a few familiar principles of law. A brief consideration of the exceptions is all that is necessary.

Neither defendant is entitled to a judgment of nonsuit. The motion of the corporate defendant rests upon three propositions: (1) The evidence of negligence against the city is not sufficient to justify the submission of an issue to the jury; (2) the plaintiff’s injury was due to the independent and intervening acts of the defendant Wall; (3) according to his own evidence the negligence of the plaintiff proximately contributed to his injury. The motion of the defendant Wall is founded on the two propositions that the plaintiff was negligent and that he was not.

The exercise of due care to keep its streets in a reasonably safe and suitable condition is one of the positive obligations imposed upon a municipal corporation. The discharge of this obligation cannot be evaded on the theory that in the construction and maintenance of its streets the municipality acts in a governmental capacity, *Graham v. Charlotte,*186 N. C., 649; *Willis v. New Bern,*191 N. C., 507; *Michaux v. Rocky Mount,*193 N. C., 550; *Hamilton v. Rocky Mount,*199 N. C., 504.

The court instructed the jury that the erection of the “silent policeman” at the intersection of the streets was not enough to constitute negligence *(Valley v. Gastonia,*203 N. C., 664) and left to the determination of the jury the question whether the city had used due care in providing adequate lights. If the city failed to exercise such care it was negligent. *Bunch v. Hdenton,*90 N. C., 431; *Bailey v. Winston-Salem,*157 N. C., 253; *Pickett v. R. R.,*200 N. C., 750. Several witnesses testified that the lights on the traffic device were not burning when the wreck occurred. Indeed, the plaintiff offered evidence that there were no lights on the streets. It is not essential that the city should have had actual notice that the lights were not burning. Notice may be implied. One of the witnesses said that the lights had been turned on and off in the morning irregularly for a long period, and this was at least some evidence of implied notice. *Dillon v. Raleigh,*124 N. C., 184; *Bailey v. Winston-Salem, supra; Willis v. New Bern, supra; Pickett v. R. R., supra.*

*242"We do not regard tire driving of tbe car on tbe street as an intervening act wbicb superseded tbe causal relation between tbe city’s negligence ■ and tbe plaintiff’s injury. On the contrary tbe danger of traversing tbe intersecting streets by those having occasion to travel in vehicles and tbe probability of injury resultant from inadequate lights are matters wbicb should have been in tbe reasonable contemplation of tbe city.

In our opinion there is not sufficient evidence to support tbe contention that tbe plaintiff’s action should be dismissed on tbe ground of his contributory negligence. Tbe morning was dark and cold. Tbe plaintiff assumed a comfortable position in tbe car, “placing bis knees against tbe dashboard,” and pulled up tbe collar of bis overcoat. Tbe windshield wiper was in front of tbe driver but on that morning it did not afford much help. There was no wiper in front of tbe plaintiff, and there tbe windshield was soiled and covered with water. "We find nothing in tbe record wbicb would bar bis recovery as a matter of law by reason of bis alleged contributory negligence, and tbe issue of fact was submitted to tbe jury under correct instructions and answered in bis favor.

The city excepted to tbe following instruction: “Tbe court further instructs you that if you find tbe light was not burning on the silent policeman, and that ordinary prudence would require that such a light be burning, taking into consideration tbe hour of tbe morning, tbe visibility, etc., that you find existed, and that tbe city in tbe exercise of ordinary care could have known it was not burning, and that this failure of tbe light not burning was tbe proximate cause of tbe injury sustained by tbe plaintiff, that would constitute actionable negligence and you would answer tbe issue, Yes.”

It is argued that tbe instruction is erroneous because it contains no reference to tbe lights located at tbe corners of tbe intersection. Some of tbe witnesses said that these lights were not burning and this testimony tbe judge no doubt bad in mind when be used tbe phrase, “And that ordinary prudence would require that such a light be burning.” Tbe defendants’ evidence tended to show that tbe corner lights when burning illuminated tbe streets but not that they were burning at the time of tbe injury.

We have examined all tbe exceptions taken by tbe city to tbe charge of tbe court and find no error. Tbe action of tbe judge in reference to tbe “amended” and “supplemental” complaints was entirely a matter of discretion. Tbe amended complaint was in fact an additional complaint filed against a defendant who was not a party when tbe first complaint was filed; and tbe purpose of tbe plaintiff was to prosecute the action against tbe defendants as joint *tort-feasors.*Tbe amendment of a pleading may be made after verdict to conform tbe allegation to tbe proof. C. S., *541,*551.

*243The court charged the jury to find that the defendant "Wall was negligent if they should find the facts to be as he had testified. He admitted that he could have seen an object twenty feet in front of his car, that he was driving at the rate of fifteen miles an hour, that he could have stopped the car within five or six feet, and that he did not see the traffic post before striking it. His testimony is equivalent to his saying that he did not see what he should have seen in the exercise of due care and did not stop as he should have stopped in time to avert the collision. The instruction is in accord with the principle stated in *Hughes v. Luther,*189 N. C., 841, which has been cited with approval in *Weston v. R. R.,*194 N. C., 210, *Davis v. Jeffreys,*197 N. C., 712, and *Williams v. Express Lines,*198 N. C., 193.

The briefs filed by the parties present various phases of the law in its relation to the exceptions, but we think it unnecessary to classify and distinguish the principles enunciated in the opinions cited. The case was carefully tried and we find no error for which the defendants should be awarded a new trial.

No error.