Bunch v. Town of Edenton

• Citation: 90 N.C. 431
• Court: North Carolina Supreme Court
• Decision Date: 28 February 1884
• Parties: FRED BUNCH v. TOWN OF EDENTON.

90 N.C. 431

FRED BUNCH

v.TOWN OF EDENTON.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Spring Term, 1883, of CHOWAN Superior Court, before Shepherd, J.

The plaintiff brought this action against the board of councilmen of the town of Edenton, to recover damages for an injury occasioned by alleged negligence on the part of the town in failing to keep the streets in proper condition.

The plaintiff was going along the side-walk on Main street, at night, and fell into a pit and received the injury complained of. The facts relating to the accident and those bearing upon the point decided, are sufficiently set out in the opinion of this court.

The following issues were submitted to the jury:

1. Did the defendants erect or cause to be erected around the pit any sufficient guard or barrier for the safety of travelers? Answer--No.

2. Did they provide sufficient light near the excavation to enable travelers to see and avoid the same? Answer--No.

3. Did the excavation include a portion of the side-walk? Answer--No.

4. Did the plaintiff by his negligence contribute to the injury? Answer--No.

5. What amount of damages has the plaintiff sustained? Answer--$250.

It was admitted on the trial that the excavation had been open for several weeks, to the knowledge of the defendants, before the accident occurred.

The defendants resisted the motion for judgment upon the ground that in passing upon the third issue the jury find the excavation did not include any portion of the side-walk or street.

The court gave judgment for the plaintiff and the defendants appealed.

Messrs. W. A. Moore and Pruden & Bunch, for plaintiff .

Messrs. A. M. Moore and W. J. Leary, for defendants .

MERRIMON, J.

It is admitted in the answer that “it was the duty of the defendants * * * to repair the streets of the town of Edenton and make and keep them safe and convenient for persons traveling to and fro on said streets.”

It appears in the record that one Lee owned a lot situate along and immediately adjoining Main street in that town, and on the side of the lot next to, adjoining and bordering on the outer side of that street, there was an excavation for the purpose of a cellar, eight feet deep, running immediately along the street the distance of forty feet, and extending back from it about sixty feet.

The defendants had knowledge of this excavation. It was permitted to remain open and unenclosed for a month without any railing, fence or other sufficient barrier to prevent persons passing that way from falling into it, and no light was placed placed at night on the street near this opening.

The plaintiff, passing along that street on the side-walk on a very dark night, was unable to see the pit, missed the side-walk, fell into it and broke his thigh, doing him serious damage. The jury found that he did not by his negligence contribute to the injury to himself.

The defendants contend generally that the plaintiff has no cause of action against them, and that if in any case they could be liable for injuries happening on the streets in said town, they could not be held liable in this case, because the pit that occasioned the injury to the plaintiff was outside of the street and side-walk.

An action does not lie against a municipal corporation for damages for the non-exercise or for the manner in which, in good faith, it exercises discretionary powers of a public or legislative character; as where power is conferred upon it generally in its discretion to make ordinances and regulations for the good government of the town, to erect such public buildings, improve such public parks and walks as it may see fit; in such and like cases no action lies for a failure to exercise such powers, nor because they were exercised in a particular manner, direction or place rather than some other.

But it is otherwise where the law confers powers and imposes corresponding duties upon such corporation, mandatory in their character. And likewise, if in the exercise of discretionary powers, through neglect or want of proper care and skill on the part of its agents and workmen, injury is done to any individual in his person or property, an action will lie in favor of the party injured against the corporation for damages for such injury.

Such corporations are always liable for acts of misfeasance positively injurious to persons, done by their officers in the course of the exercise of the corporate powers, or in the execution of corporate duties. And likewise, mere neglect or omission to perform an absolute and positive corporate duty, as distinguished from one discretionary in its nature, owing by the corporation to the plaintiff or in which he is especially interested, is ground for an action for damages in his favor. Meares v. Wilmington, 9 Ired., 73; Hill v. Charlotte, 72 N. C., 55; Lewis v. Raleigh, 77 N. C., 229; State v. Haywood, 3______, 99; Dill. on Corp., §764.

It was the positive duty of the corporate authorities of the town of Edenton to keep the streets, including the side-walks, in “proper repair”; that is, in such condition as that the people passing and repassing over them might at all times do so with...