Byers v. Standard Concrete Products Co., 445

• Decision Date: 23 November 1966
• Docket Number: No. 445,445
• Court: North Carolina Supreme Court
• Parties: , 21 A.L.R.3d 983 Mrs. Esther W. BYERS, Administratrix of Estate of Weaver Byers, Deceased v. STANDARD CONCRETE PRODUCTS COMPANY.

Page 38

151 S.E.2d 38

268 N.C. 518, 21 A.L.R.3d 983

Mrs. Esther W. BYERS, Administratrix of Estate of Weaver

Byers, Deceased v. STANDARD CONCRETE PRODUCTS COMPANY.

No. 445.

Supreme Court of North Carolina.

Nov. 23, 1966.

Hayes & Hayes, North Wilkesboro, for plaintiff, appellant.

Moore & Rousseau, North Wilkesboro, for defendant, appellee.

BRANCH, Justice.

Plaintiff's principal assignment of error is based upon her exception to the allowing of defendant's motion for involuntary nonsuit. The State Highway Commission is an administrative agency of the State, to which the State has delegated the police power to establish, maintain and improve the state and county highways. The Commission possesses such additional powers as are incidental to the purposes for which it was created. Davie Contractors, Inc., v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802. Certain powers are specifically delegated to the State Highway Commission by G.S. § 136--72, which reads as follows:

'Load limits for bridges; liability for violations.--The State Highway Commission shall have authority to determine the maximum load limit for any and all bridges on the State highway system or on any county road systems, to be taken over under §§ 136--51 to 136--53, and post warning signs thereon, and it shall be Unlawful for any person, firm, or corporation to transport any vehicle over and across any such bridge with a load exceeding the maximum load limit established by the Commission and posted upon said bridge, And any person, firm, or corporation violating the provisions of this section, shall, in addition to being guilty of a misdemeanor, be liable for any or all damages resulting to such bridge because of such violation, to be recovered in a civil action, in the nature of a penalty, to be brought by the Commission in the superior court in the county in which such bridge is located or in the county in which the person, firm, or corporation is domiciled; if such person, firm, or corporation causing the damage shall be a nonresident or a foreign corporation, such action may be brought in the Superior Court of Wake County.'

In the case of Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273, the Court considered a violation of g.S. § 119--43 relative to the storage, labelling and handling of gasoline, and speaking through Bobbitt, J., said:

'Violation of a statute, or ordinance of a city or town, relating to the storage, handling and distribution of gasoline is negligence Per se. * * * This is the rule generally as to statutes enacted for the safety and protection of the public; A fortiori, when such violation in itself is a criminal offense. * * * In such case, the sole question is whether such negligence (or wrong) was the proximate cause of the injury for which recovery is sought. True, proximate cause, even when the violation of such statute is the negligence involved, includes foreseeability as one of its elements. * * * But when such negligence is alleged to have been the proximate cause of plaintiff's injury, this is sufficient, as against demurrer, unless it appears affirmatively from the complaint that there was no causal connection between the alleged negligence and the injury.'

This Court has considered a great many statutes which impose a specific duty for the protection of others, and has held in many instances that violation thereof constitutes negligence Per se. The violation of an ordinance against employing children under twelve years of age was held negligence Per se. Leathers v. Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L.R.A.,N.S., 349. The violation of an ordinance that forbade a railroad to block crossings for more than ten minutes was held negligence Per se. Dickey v. Atlantic Coast Line R.R., 196 N.C. 726, 147 S.E. 15. The failure to obtain a permit to operate oversize or overweight vehicles in violation of G.S. § 20--119 was negligence Per se. Lyday v....