Goodwin v. Town of Reidsville

• Decision Date: 13 November 1912
• Citation: 76 S.E. 232,160 N.C. 411
• Parties: GOODWIN v. TOWN OF REIDSVILLE.
• Court: North Carolina Supreme Court

76 S.E. 232

160 N.C. 411

GOODWIN v. TOWN OF REIDSVILLE.

Supreme Court of North Carolina

November 13, 1912

Appeal from Superior Court, Rockingham County; Daniels, Judge.

Action by Henrietta Goodwin, administratrix, against the Town of Reidsville, N.C. Judgment of nonsuit, and plaintiff appeals. Affirmed.

A municipality is not liable for death of a traveler on a street caused by a baseball thrown by boys who were permitted by the police to play in the street.

When the pleadings were read, plaintiff's counsel stated that they abandoned the allegations charging the existence and nonenforcement of a town ordinance as set out in the complaint.

George D. Bennett, of Reidsville, for appellant.

Johnston Ivie & Dalton, of Reidsville, and Manly, Hendren & Womble, of Winston-Salem, for appellee.

BROWN J.

This action is brought to recover damages for the alleged wrongful death of T. C. Goodwin. The basis of the cause of action is the allegation that the defendant negligently allowed its public streets to become unsafe for travel, in that certain boys were permitted without molestation to play baseball thereon. The evidence tends to prove that the said Goodwin while driving along the public street of the defendant town in June, 1910, was struck by a baseball, his collar bone broken, and other injuries inflicted, which are charged to have caused his death. The evidence tends to prove that certain boys had a custom of collecting on the street and playing ball in the evenings, frequently during the spring and summer months, which custom had been going on for over two years, and was known to the police officers of the town and no effort had been made to stop it. Upon these facts the judge below held that the defendant was not liable, and in his opinion we concur.

A municipal corporation has a dual character, the one public and the other private. It exercises functions that are two-fold--one being governmental and legislative, and the other private and ministerial. When the corporation is acting for the preservation of peace, engaged in the maintenance of good order and the enforcement of the laws for the safety of the public, it is exercising governmental functions and enjoys immunity from suit. When the corporation exercises the powers and privileges conferred on it by its franchise for its private advantage for local and purely corporate purposes, it is subject to suit by those whom it may have injured. The distinction between the two classes of powers is set forth very clearly in many adjudicated cases, as well as by textwriters, and the exemption of the municipality from liability in the one case and its liability in the other for an injury resulting from negligence firmly established. 2 Dillon on Mun. Corp. §§ 752, 949-966; Hill v Charlotte, 72 N.C. 56, 21 Am. Rep. 451; McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A 470; Hull v. Roxboro, 142 N.C. 453, 55 S.E. 351, 12 L. R. A. (N. S.) 638; Harrington v. Greenville, 75 S.E. 849; Jones v. Williamsburg, 97 Va. 722, 34 S.E. 883, 47 L. R. A. 294; 15 A. and E. 459; 28 Cyc. 1356. The reason for this distinction is pointed out in a note found in 1 Ann. Cas. p. 961, in the following language: "The obvious reason for this distinction is that the prevention of the improper use of streets by objects in motion and subject to human control involves the direct control of persons and the regulation by the municipality of the conduct of its citizens, and this requires an...