C. C. T. Equipment Co. v. Hertz Corp.

• Decision Date: 02 February 1962
• Docket Number: No. 389,389
• Citation: 256 N.C. 277,123 S.E.2d 802
• Parties: C. C. T. EQUIPMENT CO., a North Carolina Corporation, v. The HERTZ CORPORATION, a Delaware Corporation, lvey's, Incorporated, a North Carolina Corporation, J. B. lvey's And Co., a North Carolina Corporation, and Frank Louis Foster. DAVIE CONTRACTORS, INC., a North Carolina Corporation, v. The HERTZ CORPORATION, a Delaware Corporation, lvey's, Incorporated, a North Carolina Corporation, J. B. lvey's And Company, a North Carolina Corporation, and Frank Louis Foster.
• Court: North Carolina Supreme Court

Page 802

123 S.E.2d 802

256 N.C. 277

C. C. T. EQUIPMENT CO., a North Carolina Corporation, v. The HERTZ CORPORATION, a Delaware Corporation, lvey's,

Incorporated, a North Carolina Corporation, J. B.

lvey's And Co., a North Carolina

Corporation, and Frank Louis Foster.

DAVIE CONTRACTORS, INC., a North Carolina Corporation, v. The HERTZ CORPORATION, a Delaware Corporation, lvey's,

Incorporated, a North Carolina Corporation, J. B.

lvey's And Company, a North Carolina

Corporation, and Frank Louis Foster.

No. 389

Supreme Court of North Carolina.

Feb. 2, 1962

Martin & Martin, Mocksville, for plaintiffs.

Deal, Hutchins & Minor, Winston-Salem, for defendants.

MOORE, Justice.

Defendants make a general contention which underlies all of their assignments of error. They insist that neither the State Highway Commission nor the contractor had power and authority under conditions disclosed by this record to supervise and control the use of Highway 26 by the traveling public so as to give to the contractor's equipment and machinery a dominant status, and that in the use of the highway, as between the contractor and the traveling public, the ordinary rules of the road obtained as if no construction work affecting the highway was being done. It is therefore essential that we first review generally the principles of law relevant and applicable to facts and circumstances such as those existing here.

'The establishment of highways is embraced within the police power of the state and is a matter which is primarily under the jurisdiction and control of the legislature. Such power may be exercised by the state directly or delegated to municipalities and other subordinate agencies * * *.' 25 Am.Jur., Highways s. 19, p. 350. 'The improvement, maintenance and care of highways are matters under the control of the state in its sovereign capacity, as represented by the legislature, and it is the state's duty to provide for their construction and maintenance * * *. Subject to constitutional limitations, the state has full power to construct and maintain highways, or to provide for their construction and maintenance, to choose the means and methods it will employ to accomplish these purposes, and to control the work necessary to their accomplishment, whatsoever the agency employed in carrying out such work.' ibid., s. 55, pp. 369, 370.

In North Carolina the Legislature has created a State Highway Commission. G.S. § 136-1. It is a state agency or instrumentality, and as such exercises various governmental functions, including that of supervising the construction and maintenance of state and county public roads. Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182. 'The general purpose of the laws creating the State Highway Commission is that said Commission shall take over, establish, construct, and maintain a State-wide system of hard-surfaced and other dependable highways * * *.' G.S. § 136-45. The Commission is given 'general supervision over all matters relating to the construction of the State highways * * *.' G.S. § 136-18(1). The Commission is the state agency created for the purpose of constructing and maintaining our highways. All other powers it possesses are incidental to the purpose for which it was created. De Bruhl v. State Highway & Public Works Commission, 245 N.C. 139, 95 S.E.2d 553.

The Legislature has not set out in detail every incidental power belonging to and which may be exercised by the Commission. As a practical matter the Legislature could not foresee all the problems incidental to the effective carrying out of the duties and responsibilities of the Commission. Of necessity it provided for those matters in general terms. Where a course of action is reasonably necessary for the effective prosecution of the Commission's obligation to supervise the construction, repair and maintenance of public highways, the power to take such action must be implied from the general authority given and the duty imposed. Mosteller v. Southern R. R. Co., 220 N.C. 275, 280, 17 S.E.2d 133. 'Administrative boards, commissions and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication. * * * In determining whether a board or commission has a certain power, the authority given should be liberally construed in the light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. In the construction of a grant of power, it is a general principle of law that where the end is required the appropriate means are given. * * * However, powers should not be extended by implication beyond what may be necessary for their just and reasonable execution.' 42 Am.Jur., Public Administrative Law, s. 26, pp. 316-318.

The power and authority of the Commission to provide for and supervise the construction of Interstate Highway 40, to have it cross over other highways, to acquire and grade a right-of-way for that purpose, and to control and supervise the prosecution of the work, cannot be questioned. But defendants contend that the Commission, with respect to the use of Highway 26 by the contractor in the prosecution of grading work, was without authority to bring into play any duties and responsibilities, as between the contractor and the traveling public, other than those which obtained in the normal use of the highway.

It is true that the Commission cannot by contract or by supervisory instructions prescribe for contractors a different standard of care from that imposed by the common law in a given situation, as it affects third parties. Pinnix v. Toomey, 242 N.C. 358, 363, 365, 87 S.E.2d 893. But in its use of and authority over a highway, for purposes of construction, repair or maintenance, it may create circumstances which bring into play rules of conduct which would not apply if such purposes were not involved.

G.S. § 136-26 provides: 'If it shall appear necessary to the State Highway Commission, its officers, or appropriate employees, to close any road or highway coming under its jurisdiction so as to permit proper completion of work which is being performed, such Commission, its officers or employees, may close, or cause to be closed, the whole or any portion of such road or highway deemed necessary to be excluded from public travel. While any such road or highway, or portion thereof, it so closed, or while such road or highway, or portion thereof, is in process of construction or maintenance, such Commission, its officers or appropriate employees, or its contractor, under authority from such Commission, may erect, or cause to be erected, suitable barriers or obstruction thereon; may post, or cause to be posted, conspicuous notices to the effect that the road or highway, or portion thereof, is closed; and may place warning signs, lights and lanterns on such road or highway, or portions thereof.' This statute, together with the general powers of the Commission already discussed, authorized the Commission directly or by implication, in the prosecution of the grading work in question, to direct and permit soil to be conveyed across Highway 26, the dirt ramp to be placed on the highway for its protection from injury by heavy equipment, the placing of warning signs along Highway 26, the stationing of flagmen at the ramp to stop traffic along Highway 26 and close that portion of the road when in use by earth movers, and its grade inspector to give supervision and instruction to the contractor and its employees in carrying out the grading work.

'Public travel on a street or other highway may be temporarily suspended for a necessary or proper purpose, as for example * * * to permit repairs or reconstruction.' 25 Am.Jur., Highways, s. 116, p. 414. 'The contractor doing the work * * * is there for a lawful purpose and is not obliged to stop the work * * * every time a traveller drives along. But while the traveller * * * assumes certain risks, he is still a traveller on a public way, and the contractor still owes him due care, and is liable for injuries suffered by him as a result of negligence in the performance of the work.' ibid., s. 400, p. 698.

When a contractor undertakes to perform work under contract with the State Highway Commission, the positive legal duty devolves on him to exercise ordinary care for the safety of the general public traveling over the road on which he is working. Council v. Dickerson's, Inc., 233 N.C. 472, 475, 64 S.E.2d 551; White v. Dickerson, Inc., 248 N.C. 723, 105 S.E.2d 51. Contractors must exercise ordinary care in providing and maintaining reasonable warnings and safeguards against conditions existent at the time and place. Gold v. Kiker, 216 N.C. 511, 5 S.E.2d 548; Hughes v. Robert G. Lassiter & Co., 193 N.C. 651, 137 S.E. 806. 'Actual notice of every special obstruction or defect in a * * * highway is not required to be given to a traveler, nor need the way be so barricaded as to preclude all possibility of injury, but it is sufficient if a plain warning of danger is given, and the traveler has notice or knowledge of facts sufficient to put him on inquiry. The test of the sufficiency of the warning * * * is whether the means employed, whatever they may be, are reasonably sufficient for the purpose.' 25 Am.Jur., Highways, s. 413, p. 708. When a highway is under construction or repair, to the knowledge of a traveler, he may not assume that it is in safe condition. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789.

One who operates an automobile on a public highway which is under construction or repair, or in use for such purposes, cannot assume that there are no obstructions, defects or dangers ahead. In such instances it is the duty of the motorist, in the exercise of due care, to keep his vehicle under such control that it can be stopped within the distance within which a...