Cooper v. Town of Southern Pines

• Citation: 293 S.E.2d 235,58 N.C.App. 170
• Decision Date: 06 July 1982
• Docket Number: No. 8120SC887,8120SC887
• Parties: Karen Stutts COOPER v. TOWN OF SOUTHERN PINES and Seaboard Coast Line Railroad Company.
• Court: North Carolina Court of Appeals

Page 235

293 S.E.2d 235

58 N.C.App. 170

Karen Stutts COOPER v. TOWN OF SOUTHERN PINES and Seaboard Coast Line Railroad Company.

No. 8120SC887.

Court of Appeals of North Carolina.

July 6, 1982.

Pollock, Fullenwider, Cunningham & Patterson by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Young, Moore, Henderson & Alvis by John E. Aldridge, Jr., Raleigh, and Brown, Holshouser & Pate by W. Lamont Brown, Southern Pines, for defendants-appellees.

VAUGHN, Judge.

There are two issues on appeal. (1) Did plaintiff present sufficient evidence to submit the question of the Town's negligence to the jury? (2) If so, did plaintiff's evidence establish contributory negligence as a matter of law? For the following reasons, we conclude that the court improperly entered a directed verdict in favor of the Town.

To establish a prima facie case of negligence, plaintiff must establish that defendant owed her a duty of care, that defendant breached that duty, and that defendant's breach was the actual and proximate cause of her injury. Burr v. Everhart, 246 N.C. 327, 98 S.E.2d 327 (1957). A directed verdict on the issue of negligence is improper unless the evidence, when viewed in the light most favorable to plaintiff, fails to show one of these elements.

In the present action, plaintiff alleges that G.S. 160A-298(c) creates a duty of care which the Town breached. We disagree.

G.S. 160A-298(c) authorizes a city to require "the installation, construction, erection, reconstruction, and improvement of warning signs, gates, lights, and other safety devices at grade crossings...." The exercise of control over railroad crossings has also been held to be within a municipality's inherent police power. See R.R. Co. v. City of Winston-Salem, 275 N.C. 465, 168 S.E.2d 396 (1969); Winston-Salem v. R.R., 248 N.C. 637, 105 S.E.2d 37 (1958).

The fact that a city has the authority to make certain decisions, however, does not mean that the city is under an obligation to do so. The words "authority" and "power" are not synonymous with the word "duty." When the legislature intended to create a duty in Chapter 160A, it did so expressly. See G.S. 160A-296.

G.S. 160A-298 allows a city to exercise its discretion in requiring improvements at railroad crossings. There is no mandate of action. Courts will not interfere with discretionary powers conferred on a municipality for the public welfare unless the exercise (or nonexercise) of those powers is so clearly unreasonable as to constitute an abuse of discretion. Riddle v. Ledbetter, 216 N.C. 491, 493-94, 5 S.E.2d 542, 544 (1939).

In the instant case, we find no evidence of an abuse of discretion. We, therefore, hold, as a matter of law, that the Town was not negligent in failing to require the installation of automatic signals at the New York Avenue crossing. In so holding, we necessarily overrule plaintiff's Assignments of Error Nos. 2 and 3. Those exceptions pertain to the admissibility of exhibits relevant solely to plaintiff's claims under G.S. 160A-298.

Plaintiff claims that the Town was also negligent in allowing shrubbery to obstruct a motorist's view of the tracks in violation of G.S. 160A-296(2). Unlike G.S. 160A-298, G.S. 160A-296(2) does create an affirmative duty of care: A city shall have "[t]he duty to keep the public streets, sidewalks, alleys, and bridges ... free from unnecessary obstructions." An obstruction can be anything, including vegetation, which renders the public passageway less convenient or safe for use.

In the present case, plaintiff presented evidence that the Town had improved the area bordering both sides of the tracks. There were evergreen trees, large magnolia trees, many azaleas, dogwood trees, and oak trees. The Town was responsible for the pruning of those plants. Plaintiff testified that when she stopped at the crossing, her view to the right was not clear: "Bushes and shrubs and stuff--most of those were in the way. The bushes appeared to be full and green and about medium height."

From such evidence, a jury could reasonably infer that the Town failed to exercise ordinary care in maintaining shrubbery along a public street and could foresee that its omission would cause an obstruction interfering with public safety. We conclude that the court erred in entering a...