Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-10
COURT DECISIONS.
0lGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
viRciNlAN-PlloT.
Votes of Cases Recently Decided
Which Are of Interest to
Our People.
BROWN v. LouIsBURG.

BROWN v. LOUISBURG.
supreme Court of North Carolina.
May 20. 1900.
WHEN A LOT OWNER MADE AN
EXCAVATION IN THE STREET,
OF WHICH THE TOWN HAD
KNOWLEDGE. AND A PERSON
SUED THE LOT OWNER AND
TOWN FOR DAMAGES CAUSED
BY HIS FALLING INTO SUCH EX-
CAVATION. AND AFTERWARDS
RELEASED THE LOT OWNER, HE
CANNOT RECOVER AGAINST THE
TOWN.
This action was brought against the
oetendantS to recover damages for per-
sonal injuries sustained by the plaintiff
ON account OF the alleged negligence of
The defendant. The defendant Ponton,
IN building a store wSthin the limits of
the town of Loulsburg, made q deep ex-
cavation. abutting upon the sidewalk:
and. after the front wall of the building
mad been built up TO the level OF the
sidewalk. there was still left n part OF
the excavation between the front wall
and the center OF the sidewalk, extend
ing into the sidewalk about two feet.
The hole was about two feet in width
at the top. but slanting and narrow at
the bottom. The town authorities had
knowledge OF the excavation in the
sidewalk. On dark night the plaintifr,
without fault of his own. fell into this
. excavation and was badly hurt The
mole was unguardcd by rail or other
wise and no danger signal was dis
played. While the action was pending
the plaintiff agreed In writing, through
his attorneys. for the considera ton Of
SI5. TO enter a non-suit and
TO release j. w. Ponton from any and
oil claims of the plaintiff against J.
w. Ponton by reason of the facts set
forth In the complaint filed in the above
cause and from any and all claims of
every description which the said Shelly
Brown may have against the said ].
w. Ponton." 1t was verbally agreed
at the time of the execution OF the
agreement that the payment of the S76
was not made or accepted in full salts
faction of the injuries sustained, but
simply TO discharge Ponton.
The court says:
The contention of the plaintiffs coun-
sci Is that the defendants are not joint
tort feasors, but that they were eco
trespassers. co-delinqucnts, co-wrong-
doors" and that their liability to the
plaintiff is not only joint, but several.
and that, therefore. the effect of the
contract between the plaintiff and Pom
ton and the payment OF the SIS was
only payment pro tanto. which inures
to the benefit of the other defendant
the town of Louishurg. It seems to us
immatcria1, in considering the effect of
the contract between the plaintir and
Ponton. whether the defendants were
Joint tort feaSorS or co-dclinuucntS, in
the sense In which that word is used
by the plaintiffs counsel. Tho dcfen-
dants were not, however. Joint tort fea-
sors. TO make persons joint tort fensors.
they must actively participate in the
act which causes the injury. The town
OF Louisburg had no active part in the
matter of building the house or in
creating the nuisance. The authorities
of the town knew. or ought to have
known. of the excavation in the street
but Ponton did not act under the direc-
lions of the corporation nor We're his
acts In any way for its benefit. The
absence of objection on the part of the
town authorities to the defendant Pom
tons digging the excavation cannot he
cosidered presumption that the town
intended to authorize Ponton TO leave
the excavation unguartied. Ponton.
therefore, was the active wrong-doer
in digging n pit on the public street and
leaving it uDEuarded. Tho towns liza
bility arose out of it's ncelgently per-
hitting it's sidewalk ut that dangerous
place to remain unguarded. The real
question in the case is this: Upon
which of the defendants is the ultimate
liability resting. as between them
selves? The plaintiff can. Of course. sue
either one: but which one of the defcn-
dants is liable to the other for the dam
ages which the plaintiff would be en-
titled to recover for the injury which
he has sustained on account of their
negligence? We think that Ponton
would be liable to the town and that
any recovery which might he made
against the town could he ultimately
recovered back from Ponton. And.
again. the plaintiff and the defendant
had legal right to make the contract
which they entered into: and, the con-
sideration having been paid by Ponton.
he must be protected in his rights
under that contract. He cannot be pro
tected In those rights if the town Is by
law permitted to recover out of him
whatever damages the town might he
compelled to pay to the plaintiff And
the town. as we have seen. can bring
such an action against Ponton and re-
cover from him the amount which Il by
process of law had been made to pay on
account of his negligence. Such n re-
suit would be the complete destruction
of Ponton's right under his contract
with the plaintiff. His honor should
have instructed the Jury that upon the
evidence the plaintiff could not recover.
New trial.