Hammell v. City of Albuquerque
Decision Date | 10 January 1958 |
Docket Number | No. 6277,6277 |
Parties | Burton W. HAMMELL, Defendant-Appellant, v. CITY OF ALBUQUERQUE, Third-Party Defendant-Appellee. |
Court | New Mexico Supreme Court |
McAtee, Toulouse & Marchiondo, Albuquerque, for appellant.
Frank Horan, Malcolm W. deVesty, Paul F. Henderson Jr., Albuquerque, for appellee.
This is a suit for damages resulting from an intersectional collision between an automobile driven by plaintiff's father in which he was a passenger and an automobile driven by Burton W. Hammell. The defendants are Hammell and the City of Albuquerque, New Mexico. The City was joined into the suit as a third-party defendant by virtue of the fact that third-party plaintiff claims that it was negligent in its failure to install a stop sign on Bridge Street where it interests Coors Road. By his complaint the third-party plaintiff alleges:
The trial judge sustained a motion by the City to dismiss the third-party plaintiff's complaint which set up (1) that the complaint fails to state a claim against the City, and (2) that the control of traffic by the use of stop signs is a governmental function for negligence in the performance of which the City is not liable in damages. From the order dismissing the complaint the plaintiff prosecutes this appeal.
Third-party plaintiff-appellant contends that the court erred when it granted third-party defendant's motion to dismiss the third-party complaint for failure to state a claim against the City of Albuquerque, the third-party defendant. He argues that the maintenance of a stop sign at an intersection, once installed by a city, is a ministerial and corporate function, and the failure of the City to maintain the sign, after notice and knowledge that it has been removed, is negligence. The City, third-party defendant and appellee contends otherwise.
We are of opinion that the action cannot be maintained on the theory, recognized as giving rise to municipal liability, of a failure to use reasonable care in the maintenance of its streets. No defect or obstruction is alleged. The negligence alleged consists wholly in a failure by the City to reinstall a stop sign where one was supposed to have been erected.
Section 14-37-1, 1953 Compilation, provides:
'The city council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisance. * * *' (Emphasis ours.)
To construct and maintain its streets in a safe condition is a corporate duty, and a municipality is under a legal duty to keep its streets and sidewalks in a reasonably safe condition for the use of the public, and for the negligent failure to perform this duty it is liable in tort to a person thereby injured. Primus v. City of Hot Springs, 57 N.M. 190, 256 P.2d 1065; Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765; Napoleon v. City of Santa Fe, 38 N.M. 494, 35 P.2d 973; Johnson v. City of Santa Fe, 35 N.M. 77, 290 P.2d 793; City of Roswell v. Davenport, 14 N.M. 91, 89 P. 256. But the manner in which the streets should be used and the installation of stop signs or electrical control systems calls for the exercise of municipal discretion, a governmental function, for which a municipality cannot be called to account respecting its employment of such power. See, Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689; Holton v. City of Bartow, Fla., 68 So.2d 385; Avery v. City of West Palm Beach, 152 Fla. 717, 12 So.2d 881; Martin v. City of Winchester, 278 Ky. 200, 128 S.W.2d 543; Sandmann v. Sheehan, 279 Ky. 614, 131 S.W.2d 484; Edwards v. City of Shreveport, La.App., 66 So.2d 373; Terrill v. I. C. T. Insurance Co., La.App., 90 So.2d 292; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Hiltner v. Kansas City, Mo., 293 S.W.2d 422; Vickers v. City of Camden, 122 N.J.L. 14, 3 A.2d 613; Parsons v. City of New York, 273 N.Y. 547, 7 N.E.2d...
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