Glenn v. City of Raleigh

• Decision Date: 28 June 1957
• Docket Number: No. 453,453
• Citation: 98 S.E.2d 913,246 N.C. 469
• Court: North Carolina Supreme Court
• Parties: Joseph C. GLENN, by his Next Friend, Mrs. Nora G.Glenn, v. The CITY OF RALEIGH, North Carolina, a municipal corporation.

Page 913

98 S.E.2d 913

246 N.C. 469

Joseph C. GLENN, by his Next Friend, Mrs. Nora G.Glenn, v. The CITY OF RALEIGH, North Carolina, a municipal corporation.

No. 453

Supreme Court of North Carolina.

June 28, 1957

Paul F. Smith, Raleigh, for defendant, appellant.

Douglass & McMillan, Raleigh, for plaintiff, appellee.

PARKER, Justice.

The defendant assigns as error the failure of the court to allow its motion for judgment of nonsuit renewed at the close of all the evidence.

The defendant contends that plaintiff should have been nonsuited for the reason that he has not made out a case of actionable negligence against it, but if he has, it, as a municipal corporation, is immune to suit for negligence in the performance of a governmental duty in the operation and maintenance of Pullen Park.

Defendant's contention that plaintiff has not made out a case against it of actionable negligence need not detain us. Considering plaintiff's evidence in the light most favorable to him, it appears that defendant's employee on the afternoon of 14 May 1953 was operating on very rocky ground in Pullen Park defendant's old, powerful 24-inch blade Whirlwind mower, dangerous because it had no guard in front, and which, when in operation on such ground, had been throwing rocks from it for some distance that the defendant had actual knowledge of such facts, or, if not, these facts had existed for a sufficiently long time for it in the exercise of due care to have had knowledge of them, that the defendant should have reasonbly foreseen that some injury would likely follow from the operation of this Whirlwind mower to a person using the Park, and that a rock thrown by such mower proximately caused plaintiff's injuries.

Plaintiff was at least impliedly invited to visit Pullen Park and make use of its facilities. Lovin v. Town of Hamlet, 243 N.C. 399,90 S.E.2d 760. This Court said in Brigman v. Fiske Carter Construction Co., 192 N.C. 791, 136 S.E. 125, 127, 49 A.L.R. 773, 'if a person enters upon the premises of another by reason of express or implied invitation, the owner is bound to exercise ordinary care for his safety.' Plaintiff's evidence makes out a case of negligence.

The rule that a municipal corporation tion is immune to suit for negligence in the performance of a governmental function of the municipality, but is liable if it is fulfilling a function of a proprictary character is well settled in this jurisdiction. Hamilton v. Town of Hamlet, 238 N.C. 741, 78 S.E.2d 770; Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42; Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889; Lowe v. City of Gastonia, 211 N.C. 564, 191 S.E. 7; Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A., N.S. 542; Moffitt fitt v. City of Asheville, 103 N.C.237, 9 S.E. 695, 697.

In Moffitt v. City of Asheville, supra, this Court said:

'The liability of cities and towns for the negligence of their officers or agents depends upon the nature of the power that the corporation is exercising when the damage complained of is sustained. A town acts in the dual capacities of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit. When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the managerment of property for their own profit, or in the exercise of powers assumed voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents subject to their control, although they may be engaged in some work that will enure to the general benefit of the citizens of the municipality. [Citing cases.] The grading of streets, the cleansing of sewers, and keeping in safe condition wharves, from which the corporation derives a profit, are corporate duties. [Citing cases.] On the other hand, when a city or town is exercising the judicial, discretionary, or legislative authority conferred by its charter or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute(expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence. [Citing cases.]'

The late cases, as the earlier ones, present conflicting decisions as to the question whether a municipal corporation in the maintenance of parks as places of recreation and resort for the people is discharging a governmental duty or a proprietary duty. The view taken in probably a majority of the jurisdictions in this country is that a municipality in maintaining a public park is engaged in a governmental duty, and therefore in the absence of a statute imposing liability, except in certain instances set forth in 39 Am.Jur., Parks, Squares, and Playgrounds, Sec. 37 et seq., is not liable for injuries resulting from the negligence of its employees. Other jurisdictions are committed to the view that a municipality must exercise ordinary care in maintaining its public parks to make them reasonably safe for persons frequenting and using them, and that it is subject to liability for injuries resulting from its failure to do so, which decisions are based for. the most part, but not in every instance, upon the theory that it maintains its parks in a proprietary capacity. The very numerous cases are cited in Annotations: 29 A.L.R. 863 et seq.; 42 A.L.R. 263 et seq.; 99 A.L.R. 687 et seq.; 142 A.L.R. 1342 et set.; 42 A.L.R.2d 947; 39 Am Jur., Parks, Squares, and Playgrounds, Sec. 35; McQuillin's Municipal Corporations, 3rd Ed., Vol. 18, Sec. 53.112; 63 C.J.S. Municipal Corporations Sec. 907(b) and (c).

The Courts of different states have taken varying views of the effect of a municipality conducting its parks in such a manner as to derive revenue therefrom in considering the question as to whether the municipality was acting in a governmental or proprietary capacity. Annotations: 29 A.L.R. 874-875; 42 A.L.R. 265; 99 A.L.R. 694-696; 142 A.L.R. 1370-1372; 39 Am. Jur., Parks, Squares and Playgrounds, Sec. 37; McQuillin's Municipal Corporations, 3rd Ed., Vol. 18, pp. 451-452; 63 C.J.S. Municipal Corporations § 907, p. 318.

In Carta v. City of Norwalk, 108 Conn. 697, 145 A. 158, 160, the city received a $2,500 rental for the lease of a bathing beach, the city lessor reserved the right to inspect the premises at all times. This rental was held prima facie to import such corporate benefit or pecuniary profit as to exclude city from rule granting it immunity from liability for its negligence, and to render erroneous direction of nonsuit in action for negligent injuries resulting in death. The Court said:

'However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence. Hourigan v. Norwich, 77 Conn. 358, 365, 59 A. 487; Oliver v. [City of] Worcester, 102 Mass. 489, 502, 3 Am.Rep. 485; Chafor v. [City of] Long Beach, 174 Cal. 478, 163 P. 670, L.R.A.1917E, 685, Ann.Cas.1918D, 106; 6 McQuillin on Municipal Corporations, p. 5512.* * * In the present case the amount of annual rental accruing to the city ($2,500)is such as to remove it, at least prima facie, from the category of such incidental income, and to import such a 'special corporate benefit or pecuniary profit' as to exclude the application of the rule of governmental immunity. It may be that a further development of facts may alter the situation, but the plaintiff's evidence and the required inferences therefrom were sufficient to protect him from a nonsuit on this ground.'

See, also, De Capua v. City of New Haven, 126 Conn. 558, 13 A.2d 581; Tierney v. Correia, 120 Conn. 140, 180 A. 282.

We have examined the record and briefs in Lowe v. City of Gastonia, supra, in the Clerk's Office. The complaint alleges, 'the defendant, city of Gastonia, maintained and operated in its corporate capacity, the said Golf Course as a business for profit, charging patrons thereon a fee for playing golf on said course.' The city clerk was a witness for plaintiff, and testified in substance: The Golf Course was a part of the Recreational System of the city of Gastonia. It was operated by Neely Price for the city. The city did not make any money off the Golf Course, but lost money every year. Plaintiff's evidence further showed fees were charged to all who played, except caddies. Plaintiff, when injured, was on the Golf Course as a caddy. Defendant in its answer admitted that it owned the Golf Course, but denied that it operated it as a business for profit. Defendant contended in its brief that plaintiff should have been nonsuited on the ground that there was no evidence of negligence on its part, but if there was, plaintiff was guilty of contributory negligence as a matter of law, and further, that if these contentions were untenable, then it was operating the Golf Course as a governmental function, and is immune from suit. Issues of negligence, contributory negligence and damages were submitted to the jury, and answered in plaintiff's favor. In upholding the trial this Court said: 'Defendant's contention on its appeal to this court that it is not liable to the plaintiff in this action, because it owned and maintained the golf course in the exercise of a governmental function, cannot be sustained.' [211 N.C. 564, 191 S.E. 8.]

This Court said in Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325, 326: 'When a municipal corporation is acting in its ministerial or corporate character in the management of property for its own benefit, it may become liable for damages caused by the negligence of its agents subject to its control.'

Bolster v. City of Lawrence, 225 Mass. 387, ...