Haney v. Town of Lincolnton

• Decision Date: 31 October 1934
• Docket Number: 310.
• Parties: HANEY v. TOWN OF LINCOLNTON.
• Court: North Carolina Supreme Court

176 S.E. 573

207 N.C. 282

HANEY v. TOWN OF LINCOLNTON.

No. 310.

Supreme Court of North Carolina

October 31, 1934

Appeal from Superior Court, Lincoln County; Oglesby, Judge.

Action by James Haney, administrator, against the Town of Lincolnton. From an adverse judgment, defendant appeals.

Reversed.

CLARKSON J., dissenting.

Municipality's duty to place lights or signs at street intersection is that of ordinary care.

Civil action to recover damages for the death of plaintiff's intestate, Sue Gurley, which occurred in the town of Lincolnton on Christmas morning, 1932, and is alleged to have been caused by the wrongful act, neglect, or default of the defendant.

The facts are these: The deceased, a school girl seventeen years of age, Guy Barringer, age nineteen or twenty, James Haney and Miss Hayes left Hickory between 3 and 3:30 o'clock in the morning and reached Lincolnton about 5 a. m. en route to Shelby and thence to York, S. C., where Haney and Miss Hayes were to be married. They were riding in a five-passenger 1928 Pontiac sedan. Barringer was driving and Miss Gurley was on the front seat with him. Haney and his fiancée occupied the rear seat. The trip was the result of a prearranged plan, the automobile having been secured for the purpose from Barringer's father, and all four were up the entire night, dining, dancing, and preparing for the journey. None had had any sleep. There was no drinking in the party.

The night was dark; the weather inclement, foggy, and drizzling rain. The lights on the automobile were dim, did not show very far in front, shone right down on the road. Barringer was familiar with the road leading out of Lincolnton to Shelby, had spent a good part of the summer there, but had never driven a car over it. They reached Lincolnton before day, drove around the square and out church street to Mill street, the old Lincolnton-Shelby highway prior to the construction of the new Lincolnton-Shelby road. Haney remarked he thought they were on the wrong road; Barringer replied he knew that was the Shelby road when he was there "I knew they had a new road built and I thought it had been extended straight on."

Church street is paved with sheet asphalt and is about eighteen feet wide. It comes into Mill street at right angles, but does not cross it. Mill street is a paved highway going in the direction of Shelby. It is paved in the opposite direction only a short distance-about four feet. The paving at the corner of the intersection of Church and Mill streets had been widened eight or ten feet on the inside of the curve in addition to the regular eighteen feet, so as to make the turn easier. It had been in this condition for seven years. Church street is practically level as it goes into the intersection.

Directly across from where Church street intersects with Mill street and on the west side of Mill street, there is a dirt shoulder "of possibly 6 or 8 feet beyond the west edge of the hard surface, which had been grassed-the usual six-foot shoulder that you find on roads." There was other evidence that the dirt shoulder was only four feet in width. Beyond this, there is a declivity, fill, or embankment, which slopes gradually from the shoulder of the road to a depth of from six to ten or twelve feet.

Barringer failed to turn into Mill street, ran directly across it, over the shoulder, down the embankment, into the fill, which was wet and soggy, turned the car over, and Miss Gurley was killed.

Barringer testified that he was traveling westward along Church street at a rate of from fifteen to twenty miles an hour; that he did not observe the road turned to the left until he crossed the hard-surfaced part of Mill street, too late to avoid going down the embankment; that while the lights on Main street were burning, there was no light at this intersection; nor were there any guard rails, barriers, posts, or signs to warn travelers of the unguarded ravine; and further, on cross-examination: "There was not anything to keep a man from following this pavement, and there wasn't anything there to tell us to turn. * * * There wasn't anything to keep me from following it if I was watching the road. I was driving this car no faster than 15 or 20 miles, and I just drove down that embankment. I did not tell Mr. Nicholson that I was perfectly familiar with that road, but that I got to the turning place quicker than I thought."

There was also evidence introduced to show that four or five other cars, within the last several years, had failed to follow the paved road and had gone over this embankment, some in the daytime, some in the nighttime, but no injuries of any consequence had hitherto occurred.

The city electrician testified that there was one street light in the neighborhood of this intersection. "It was not burning at 5 o'clock Christmas morning, 1932. * * * We cut off the lights in the residential sections at 12:30 or 1 o'clock, but on the main street they burn all night."

Motion to nonsuit under Hinsdale Act, C. S. § 567; overruled; exception.

The defendant offered no evidence.

The case was submitted to the jury on the issues of negligence and damages, and resulted in a verdict of $10,000 for the plaintiff.

From the judgment entered thereon, the defendant appeals, assigning errors; the principal one being directed to the refusal of the court to grant the defendant's motion for judgment as of nonsuit.

W. H. Childs and S. M. Roper, both of Lincolnton, and Ryburn & Hoey, of Shelby, for appellant.

Jonas & Jonas and L. E. Rudisill, all of Lincolnton, and R. H. Shuford and R. L. Huffman, both of Hickory, for appellee.

STACY, Chief Justice (after stating the case).

It is not debated on brief, nor was it mooted on the hearing, whether plaintiff's intestate and her companions had embarked upon a joint enterprise, or joint venture, so as to render the contributory negligence of the driver imputable to the other occupants of the car; hence we omit any consideration of this view of the matter. For history, philosophy, definition, and application of the doctrine of joint enterprise, see Potter v. Florida Motor Lines (D. C.) 57 F. (2d) 313 (which contains a clear exposition of the principles underlying the doctrine); Carlson v. Erie R. Co., 305 Pa. 431, 158 A. 163, 80 A. L. R. 308 (with annotation); Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A. L. R. 626 (with annotation); Keiswetter v. Rubenstein, 235 Mich. 36, 209 N.W. 154, 48 A. L. R. 1049 (with annotation); Charnock v. Refrigerating Co., 202 N.C. 105, 161 S.E. 707; Butner v. Whitlow, 201 N.C. 749, 161 S.E. 389; Albritton v. Hill, 190 N.C. 429, 130 S.E. 5; Williams v. R. Co., 187 N.C. 348, 121 S.E. 608 (concurring opinion); Pusey v. R. Co., 181 N.C. 137, 106 S.E. 452; Eubanks v. Kielsmeier, 171 Wash. 484, 18 P.2d 48, as reported in 34 N.C. C. A. 388, with full annotation upon the subject.

And further, by way of elimination, it is not alleged that there was any defect, excavation, or obstruction, in the street itself, which had been permitted to remain there for an unreasonable length of time, without signals or lights to warn the traveling public, as was the case in Pickett v. Railroad and Town of Newton, 200 N.C. 750, 158 S.E. 398; nor that the street abruptly terminated in a river without barricade or lights, as was the case in Willis v. New Bern, 191 N.C. 507, 132 S.E. 286.

The gravamen of the complaint is that the elbow or sharp turn in the highway created by the intersection of Church and Mill streets is immediately adjacent to a dangerous declivity which calls for lights, signs, railing, or barrier to make it safe for travel in the exercise of ordinary care, and that the failure on the part of the municipality to guard or to warn the public of such danger is negligence, rendering it liable in damages for injuries to travelers which proximately result from a breach of its duty in this respect. Speas v. City of Greensboro, 204 N.C. 239, 167 S.E. 807.

The rule applicable is stated in 13 R. C. L. 421, as follows: "It is well settled that it is the duty of a municipal or quasi municipal corporation to erect railings or barriers along the highway at places where they are necessary to make the same safe and convenient for travelers in the use of ordinary care, and that it is liable for injuries to travelers resulting from a breach of its duty in this regard. This is true though the danger arises from structures or excavations outside of the highway, and on the land of adjoining owners, when they are in the general direction of travel upon the highway. Whether or not a railing or barrier is necessary in a given case depends largely upon the circumstances of the particular locality in reference to which the question arises. Among the facts material to be considered are the character and amount of travel, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a railing, whether the danger is concealed or obvious, and the extent of the injury likely to occur therefrom. A number of courts have laid down the rule that the danger must be of an unusual character and one that exposes travelers to unusual hazards, such as bridges, declivities, excavations, steep banks, or deep water."

Our own decisions are accordant with this statement. Willis v. New Bern, supra, and cases there assembled.

It is further established by the decisions in this jurisdiction that a municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are safe for travel. Alexander v. Statesville, 165 N.C. 527, 81 S.E. 763; Seagraves v. City of Winston, 170 N.C. 618, 87 S.E. 507; ...