#### McKINLEY PRESLEY v. C. M. ALLEN & COMPANY, INC.

(Filed 26 September, 1951.)

1. Municipal Corporations § 35b—

In tbe absence of evidence to tbe contrary, it will be assumed that an excavation along a street for tbe purpose of placing underground telephone wires and cables was made with tbe sanction and permission of tbe municipal authorities. G.S. 160-222.

3.Municipal Corporations § 14a: Highways § 4b—

A contractor excavating a ditch along a city street with the sanction and permission of tbe governing board of tbe municipality is under tbe same legal duty to the traveling public as tbe municipality would owe if it were in direct charge of tbe work, which is tbe duty to exercise care commensurate with the surrounding dangers and circumstances to warn travelers of tbe existence of tbe excavation and otherwise to protect them against injury therefrom.

3. Same—

Where tbe physical facts are sufficient to give the traveling public notice of a work project along a street, the usual rule that a traveler may assume a street to he in safe condition has no application in the use of that part of the street left open to traffic.

4. Same—

Ordinarily, barriers or guard rails at an excavation along a street are for the purpose of warning the traveling public and it is not required that they be sufficient to repel vehicles that may deviate from the traveled portion of the street into the zone of danger, or even that they be erected in the daytime when the excavation is plainly visible.

5. Same—

Where plaintiff motorist’s own testimony is to the effect that he had knowledge of an excavation along a municipal street and the conditions extant, he may not maintain that the contractor was negligent in failing to provide adequate signs and barricades warning of the danger, since he had knowledge thereof and *no one*needs notice of what he already knows.

6. Negligence § 19c—

Nonsuit is properly entered when plaintiff’s own evidence makes out a clear case of contributory negligence, and thus proves himself out of court.

7. Municipal Corporations § 14a: Highways § 4b — Evidence held to show contributory negligence as matter oí law on part of motorist skidding into excavation.

Plaintiff motorist’s evidence was to the effect that as he approached the place where defendant was excavating along that side of the street to the motorist’s left, of which condition he had knowledge, he turned to the left to clear a vehicle parked at an angle on the right side of the street, which vehicle obscured his view of traffic further along the street, that immediately upon clearing the parked vehicle he was blocked by another vehicle which was double parked so as to leave insufficient room for plain*182tiff to pass between its left side and tlie ditcb, that plaintiff applied bis brakes, and that his car skidded on.-tbe wet mud from the excavation and its left front wheel went into the ditch, resulting in injury to plaintiff. *Held:*Conceding the contractor to have been negligent in placing the loose dirt from the excavation toward the traveled portion of the street where it became wet and slick, plaintiff’s own evidence disclosed contributory negligence barring his recovery as a matter of law.

Yalentine, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from *Rousseau, J.,*January Term, 1951, of Haywood.

Affirmed.

Civil action to recover damages for personal injuries alleged to have been sustained by plaintiff when tbe pick-up truck be was driving ran into a ditcb dug by tbe defendant contractor in and along tbe paved portion of Main Street in tbe Town of Canton while laying underground cables and wires for tbe Southern Bell Telephone and Telegraph Company.

Tbe usual issues of negligence and contributory negligence were raised by tbe pleadings.

At tbe close of all tbe evidence tbe defendant’s motion for nonsuit was allowed. From judgment based on such ruling tbe plaintiff appealed, assigning errors.

*R. E. Sentelle, W. R. Francis, and Geo. M. Pritchard for plaintiff, appellant.*

*Harlcins, Van Winlcle, Walton •& Bucle for defendant, appellee.*

JoiiNsoN, J.

Tbe plaintiff offered evidence tending to show that on and prior to 14 July, 1948, tbe defendant contractor was and bad been engaged in excavating a ditcb for tbe purpose of laying underground cables for tbe telephone company along Main Street at and near tbe junction of Adams Street in the Town of Canton, where traffic was heavy. Tbe excavation extended from near the intersection of Main and Adams Streets westerly inside and along tbe paved portion of Main Street down to a point in Water Street an over-all distance of “two or three hundred feet.” Tbe project had been under way about two weeks. “They would excavate a distance,” put in a section of tbe conduit, . . . “and close that up and go to another section.” While tbe work was in progress tbe north side of Main Street between tbe excavation and tbe curb was left open to vehicular traffic. The ditcb was about two feet wide and from three to five feet deep. It ran parallel to and about four feet inside from tbe south curb. Tbe width of Main Street there is from 40 to 50 feet. Hence, there was left open for traffic on the north side of the ditcb some 30 to 35 feet of tbe street. At tbe time of tbe mishap a section of tbe ditcb from *18350 to 100 feet long was open on Main Street immediately west of tbe Adams Street intersection.

Tbe dirt and clay from tbe ditcb bad been thrown out on both sides, mainly on tbe north or traveled side, forming on that side an embankment from 18 to 24 inches high next to tbe ditcb.

Tbe evidence was conflicting as to tbe number and location of warning signs and barriers along and near tbe excavation. According to plaintiff’s evidence (which controls tbe appeal), there were no guard rails between tbe ditcb and tbe traveled portion of tbe street. Tbe plaintiff testified, however, that “there was a horse (a type of barrier) at tbe upper end, . . . (with) a sign banging on it that said ‘Men "Working.’ That was probably 100 feet up tbe street.” líe and bis witnesses also said like “horses” were stationed at other places near and at each end of tbe ditcb.

Clay was “scattered on tbe right (north) side of tbe street coming west.” As one of plaintiff’s witnesses put it, “It wasn’t too deep over in tbe street, it just got knocked over there and there was enough to make tbe street disagreeable for traffic, . . . tbe clay was all wet and slippery that- day. It bad been raining all day” but bad just slackened. There was evidence that tbe surface of tbe street sloped slightly toward tbe west and also in tbe direction of tbe ditcb.

Tbe plaintiff related tbe details of tbe occurrences in substance as follows: That on tbe afternoon in question, at about 3 :30 o’clock, be drove bis pick-up truck up to tbe intersection of Main and Adams Streets. A station wagon in front of him went on through, but be was caught by tbe traffic light turning red. Immediately in front of plaintiff and beyond tbe intersection, a long work bus was parked on bis right at an angle. Tbe rear of this bus projected back from tbe sidewalk so that when plaintiff stopped on tbe red light tbe bus was so parked that be “couldn’t see around it.” A policeman standing on tbe northeast corner of tbe intersection motioned plaintiff around tbe bus. When be got around tbe bus, be said “I could (then) see . . . (tbe) station wagon there. ... It was double-parked, and there was not room to get between (it) and tbe ditcb, . . . and I saw I was going to bit tbe station wagon, so I applied my brakes and skidded into tbe ditcb and tbe last thing I remember my chest bit tbe steering wheel.” Tbe distance between tbe parked station wagon and tbe ditcb was “probably 4 or 5 feet, . . . not room for me to go through.” He said be “skidded a little forward and sidewise” into tbe ditch, “approximately 4 feet.” Only tbe left front wheel went in tbe ditcb. At that point bis pick-up was about 10 feet behind tbe double parked station wagon. Tbe distance traveled by tbe plaintiff from the intersection to where be came to rest in tbe ditcb varied according to plaintiff’s evidence from 10 to 20 feet, and be said be was *184driving 7 or 8 miles an hour. He said the policeman “motioned me through pretty fast and I stepped on it and went on.” There was no evidence tending to show signs of skid marks made by plaintiff’s pick-up near where it went in the ditch.

The plaintiff insists that his evidence was sufficient to take the ease to the jury. He places chief emphasis on the evidence which tends to support his allegations that the defendant was negligent in (1) failing to provide adequate signs, barriers, and guard rails for the protection of the traveling public; and (2) “throwing loose clay from the ditch onto the pavement, . . . and in permitting the wet clay to be scattered and strewn over the pavement where the public was traveling.”

1. *The alleged failure to provide adequate signs, harriers, and guard rails.*— On this record it may be assumed that in placing the telephone wires and cables underground the defendant contractor was performing a lawful undertaking for the telephone company and that the ditch was being excavated along Main Street with the sanction and permission of the governing board of the Town. Gr.S. 160-222.

The question then arises as to what duty the defendant owed the public in respect to keeping safe the traveled portion of the street while the construction work was in progress.

It seems to be conceded, and rightly so, that the defendant, being in charge of the excavation project, was under substantially the same legal duty to the traveling public as would the Town if it had been in direct charge of making the excavation for some purpose of its own. *Kinsey v. Kinston,*145 N.C. 106, 58 S.E. 912. See also McQuillin, Municipal Corporations, 3d Ed., Vol. 19, Sec. 54.42, pp. 148 to 150.

The defendant was not an insurer of the safety of travelers upon the street. *Watkins v. Raleigh,*214 N.C. 644, 200 S.E. 424; *Houston v. Monroe,*213 N.C. 788, 197 S.E. 571. And that is so notwithstanding the fact that in making the excavation inside of the traveled portion of the street the defendant may have created a dangerous condition therein. Assuming, as we may, that the excavation was made under permission duly granted by the municipality, the defendant contractor was under the duty to exercise ordinary care, *i.e.,*care commensurate with the surrounding dangers and circumstances, to warn travelers of the existence of the excavation, and otherwise to protect them against injury therefrom. *Evans v. Construction Co.,*194 N.C. 31, 138 S.E. 411; *Ramsbottom v. Railroad,*138 N.C. 38, 50 S.E. 448; 25 Am. Jur., Highways, Sec. 400, pp. 697 and 698. See also *Murray v. R. R.,*218 N.C. 392, 11 S.E. 2d 326; Anno. 119 A.L.R. 841.

Also, where, as here, a work project or repair job is under way and a portion of the street is left open to traffic, the usual rule that a traveler may assume a public street to be in safe condition has no application. *185*Beaver v. China Grove,*222 N.C. 234, 22 S.E. 2d 434. Tbe public is not invited to use tbe open portion as in all respects entirely safe, as under ordinary conditions. Tbe invitation bas its limitations and includes warnings of danger based on physical facts apparent to tbe traveler. *Phelan v. Granite Bituminous Paving Co.,*227 Mo. 666, 127 S.W. 318; 25 Am. Jur., Highways, Sec. 400, p. 698. Therefore, a contractor lawfully in charge of an excavation project in a street, as in tbe instant case, fulfills bis obligation to those who use tbe adjacent traveled portion of tbe street when in tbe exercise of ordinary care be takes reasonable precautions to notify tbe public that work of such character is in progress and to guard against injuries arising therefrom. *Phelan v. Granite Bituminous Paving Co., supra;*25 Am. Jur., Highways, Sec. 400, p. 698.

Thus it would seem that ordinarily tbe law imposes no special requirement that barriers or guard rails of any particular kind be erected as tbe means of giving protection and warning against dangers incident to a temporary street excavation, on pain of liability for failure to do so. In tbe final analysis, tbe test of tbe sufficiency of tbe warning is not whether barriers or other physical devices are used, but is whether tbe means employed, whatever they may be, are reasonably sufficient to give warning of tbe danger. 25 Am. Jur., Highways, Sec. 413, p. 708. Ordinarily, it would seem to be sufficient if a plain warning of danger is given and tbe traveler bas notice and knowledge of facts sufficient to enable him, in tbe exercise of ordinary care, to avert injury. 63 O. J.S., Municipal Corporations, Sec. 821, p. 158.

It follows, therefore, that when an excavation is plainly visible, tbe municipality (or responsible authority) is not bound to place a guard or signal there in tbe daytime. *Rock Island v. Gingles,*217 Ill. 185, 75 N.E. 468; 63 C.J.S., Municipal Corporations, Sec. 821, p. 158. See also McQuillin, Municipal Corporations, 3d Ed., Vol. 19, Sec. 54.90, top p. 343.

Also, when a contractor who is charged with tbe duty of giving protective warning in respect to a street excavation, or temporary hazard of like kind, proceeds to erect barriers in tbe vicinity of tbe project, ordinarily it may be assumed that tbe purpose of tbe barriers is to warn travelers of tbe danger, and not to furnish protective shields for repelling tbe force of vehicles that may deviate from tbe traveled portion of tbe street into tbe zone of danger. It is not required that such barriers be proof against any substantial degree of force. It suffices if they are reasonably calculated to give warning to those who themselves are exercising ordinary care for their own safety. *Love v. Asheville,*210 N.C. 476, 187 S.E. 562; *Haney v. Lincolnton,*207 N.C. 282, 176 S.E. 573.

When we come to apply the foregoing rules of law to tbe plaintiff’s evidence, it would seem that tbe testimony strongly negatives any impli*186cation of negligence on the part of the defendant in respect to failure to provide adequate warnings of danger for the traveling public.

In any event, it appears that the mishap occurred in broad daylight. The plaintiff had passed the place earlier that day. He had “seen men working there better than two weeks, off and on.” He said, “I had passed that place sometimes once a day and sometimes twice a day.” Thus the plaintiff' had actual knowledge of the condition of the street and of the excavation project therein. “No one needs notice of what he already knows,” and “knowledge of the danger is equivalent to prior notice.” *Beaver v. China Grove, supra*(222 N.C. 234, p. 236). Accordingly, on this record there appears to be a complete lack of causal connection between the injuries complained of and any negligence of the defendant that may be predicated upon plaintiff’s allegations that defendant was negligent in failing to provide adequate signs, barricades, and guard rails for the protection of the traveling public *(Beaver v. China Grove, supra),*and proximate cause is an essential element of actionable negligence. *Love v. Asheville, supra*(210 N.C. 477). See also *Wood v. Telephone Co.,*228 N.C. 605, 46 S.E. 2d 717.

2. *The question of actionable negligence predicated upon permitting wet clay to be scattered over the traveled portion of the pavement.-*— -If we should concede, without deciding, that the plaintiff made out a *prima facie*case on this theory *(Grab v. Davis Const. Co.,*233 Mo. App. 819, 109 S.W. 2d 882), nevertheless, it is manifest from the evidence adduced by the plaintiff that he failed to exercise due care for his own safety and that such failure to exercise care contributed to, and was a proximate cause of, his injuries. It is settled by many decisions of this Court that judgment of nonsuit may properly be entered when the plaintiff by his •own evidence makes out a clear case of contributory negligence. He thus proves himself out of court. *Sawyer v. Southern Rwy. Co., et al., ante,*164; *Watkins v. Raleigh, supra*(214 N.C. 644); *Houston v. Monroe, supra*(213 N.C. 788).

The plaintiff’s evidence shows he knew the ditch was there and that the clay was piled alongside of it. He said, “I had seen men working there better than two weeks, off and on.” And further that he “Had passed over the same place fifty times while they were digging that ditch. Every time I passed without any trouble.” He said he knew the men were working there the day of the accident and “knew they were throwing •dirt out of the ditch.” He had driven past the place earlier that day. The evidence discloses that it had rained all day until just before the mishap. Thus if the clay was slick on the surface of the pavement, he knew, or in the exercise of due care should have known it. While he was •caught by the red traffic light, just before crossing the intersection, the condition of the pavement was in full view, so that if, as testified by his *187witness Josephson, “there was a film of dirt on the street all over the intersection, and . . . piled alongside of the ditch,”'the plaintiff was chargeable with notice of such condition. The evidence shows unmistakably he was thoroughly familiar with all the conditions of the street at the time.

. It is also clear from the record that the traveled portion of the street, parallel to and on the north side of the ditch, was amply wide for him, in the exercise of due care, to have remained out of slipping distance of the ditch. As he proceeded westerly on Main Street, the traveled portion of Main Street north of the ditch was from 30 to 40 feet wide. True, he had to swing left around the rear of a parked bus on the right side of the street immediately beyond the intersection, but even so, this left plenty of room for him to have driven around the bus and averted the danger of skidding into the ditch.

The only reasonable inferences deducible from the evidence are that he either (1) neglected to maintain a proper lookout and failed to exercise proper control over his pick-up in swinging wide behind the parked work bus and within slipping distance of the ditch, when he had ample space to the right of the ditch to have remained out of danger; or (2) steered his pick-up into the wet mud and clay mound in close proximity to the ditch, in an effort to pass to the left of the parked station wagon ahead of him, and learned too late there was not room to pass in the four or five-foot space between the ditch and the station wagon. In either of these events, he is chargeable as a matter of law with negligence proximately causing or contributing to his injury. *Ovens v. Charlotte,*159 N.C. 332, 74 S.E. 748; *Sawyer v. Railroad, supra,*and cases cited; *Alton v. English,*69 Ill. App. 197; *Marshall v. Baton Rouge*(La. App.), 32 So. 2d 469. See also McQuillin, Municipal Corporations, 3d Ed., Vol. 19, Sec. 54.138, p. 504 *et seq.*

*We*conclude, therefore, that the motion to nonsuit was properly allowed.

Affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.