Hodges v. City Of Charlotte, 534.
| Citation | 200 S.E. 889,214 N.C. 737 |
| Decision Date | 01 February 1939 |
| Docket Number | No. 534.,534. |
| Court | North Carolina Supreme Court |
| Parties | HODGES. v. CITY OF CHARLOTTE et al. |
HODGES.
v.
CITY OF CHARLOTTE et al.
No. 534.
Supreme Court of North Carolina.
Feb. 1, 1939.
[200 S.E. 889]
CLARKSON, J., dissenting.
Appeal from Superior Court, Mecklenburg County; Frank M. Armstrong, Judge.
Civil action by Mrs. W. M. Hodges against the City of Charlotte, original party defendant, and Herman Black, additional party defendant, to recover damages resulting from alleged actionable negligence. From a judgment as of nonsuit, plaintiff appeals.
Affirmed.
Civil action for recovery of damages resulting from alleged actionable negligence.
Plaintiff alleges that on the morning of December 18, 1934, while she was walking across E. Trade Street in the city of Charlotte, immediately west of the intersection of that street with Myers Street, she. was stricken and injured by an automobile truck of the city of Charlotte negligently operated, by the defendant, Herman Black, in the manner specified and in furtherance of the business of the city of Charlotte, but not in the exercise of a governmental function.
Defendants admit that the plaintiff was stricken by the truck of the defendant, city of Charlotte, while being operated by defendant Black, but aver that the truck was being operated in the exercise of a governmental function. The defendant, Herman Black, who was not served with summons until March 25, 1938, pleads the three-year statute of limitation.
With respect to the operation and purpose of operating the truck, plaintiff offered testimony of defendant Black on adverse examination in substance as follows: Black was an employee of the city in the traffic signal division engaged in fixing signal lights and installing traffic signs and in the general maintenance of the safety zones. In that department there were four employees, three permanent and one temporary. All their work is in connection with signal lights, traffic signs and the maintenance of white lines. They work every day testing signal lights that are reported out of fix. There are approximately sixty signal lights in the city. These are not permanent fixtures. They are not changed at any specified times. They last for years, but the devices that run and control them get out of order.
The city truck which Black was operating on the occasion in question is used when fixing signal lights and to carry equipment to where the employees in the traffic signal division are at work. The truck is not used for any other purposes. It is used in all time service only by the employees of that department.
On the morning in question the desk sergeant of the city police department, from which calls were made to the traffic signal division, telephoned to Black, at his home, and where he kept the truck at that time, to go to College and Trade Streets to fix a light. In response to the call Black was on his way from his: home to the point named, when the plaintiff was injured. He was going to do a specific job, to install a bulb in the traffic light at College and Trade Streets which regulated traffic in that part of the city. This was his sole duty at the time.
If, however, while on this trip, Black had seen a defective place in the street or in connection with the water works which he thought needed repairs, he would
[200 S.E. 890]have considered it his duty to report the defect to the department having supervision of the streets or of the water works as the case might be. A letter from the city manager so directed generally. The traffic signal division is a separate department of the city government.
From judgment as of nonsuit, plaintiff appeals to Supreme Court and assigns error.
G. T. Carswell and Joe W. Ervin, both of Charlotte, for appellant.
J. M. Scarborough and B. M. Boyd, both of Charlotte, for appellees.
WINBORNE, Justice.
The plaintiff, in brief filed in this Court, admits that, upon the plea of statute of limitations, the action is barred as to defendant, Black, and that judgment as of nonsuit, in so far as it relates to him, is proper. But, as to defendant, city of Charlotte, plaintiff presses challenge to correctness of judgment as of nonsuit.
The plaintiff contends that the defendant, city, acting through its employee and co-defendant, Black, in the operation of the truck in question on a mission to repair a traffic light was engaged in a private or proprietary function. On the other hand, the defendant city contends that while so acting and at the time and on the mission in question it was engaged in the exercise of a governmental function.
It is conceded that, if the contention of the city be correct, there is no error in the judgment below.
The decisions of this Court uniformly hold that, in the absence of some statute which subjects them to liability therefor, cities, when acting in their corporate character, or in the exercise of powers for their own advantage, may be liable for the negligent acts of their officers and agents; but when acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by their charters or by statute, and when discharging a duty imposed solely for the public benefit, they are not liable for the tortious acts of their officers or agents. Hill v. Board of Alderman of Charlotte, 72 N.C. 55, 21 Am.Rep. 451; McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470; Harrington v. Town of Greenville, 159 N.C. 632, 75 S.E. 849; Snider v. High Point, 168 N.C. 608, 85 S.E. 15; James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Cathey v. Charlotte, 197 N.C. 309, 148 S.E. 426; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814, and numerous other cases.
This determinative question, therefore, arises: Is the installing and maintaining of traffic light signal system in and by a city, in the exercise of governmental function, or in proprietary or corporate capacity? We are of opinion that it is in the exercise of a discretionary governmental function.
A traffic light signal system is in the interest of safety to the users of the streets and is installed solely for the public benefit. It is in effect the substituting of a signal for a policeman in regulating traffic in the use of streets. While the cities are not required to install such system, there is statutory authority for the exercise of such police power. C.S. § 2787 (11) and (31), Pub.Laws 1917, Chapter 136, sub-chapter 5, § 1 (k) (ee); Pub. Laws 1919, Chapter 296.
In the instant case the traffic light system is subject to the supervision of the police department. In 43 C.J. 964, Municipal Corporations, Sec. 1745, it is said: "The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public".
The question has been the subject of judicial consideration in other jurisdictions. In Parsons v. City of New York, 248 App.Div. 825, 289 N.Y.S. 198, affirmed 273 N.Y. 547, 7 N.E.2d 685, under the provision of the city charter making it mandatory duty of police to regulate traffic, the Court said [page 199]: "Signal lights are an incidental part of traffic regulation. The allegation of the complaint, admitted by failure to deny in the answer, that the city maintained the light involved in this action, necessarily means maintained through the police. Regulation of traffic, and therefore the proper maintenance of signal lights used in that connection, is the performance of a governmental duty, for neglect of the police in the exercise of which the city is not liable".
In Cleveland v. Town of Lancaster, 239 App.Div. 263, 267 N.Y.S. 673, affirmed 264 N.Y. 568, 191 N.E. 568, it is stated [page 676]: "The town boards were also authorized by statute to enact ordinances,
[200 S.E. 891]rules, and regulations relating to peace and good order generally. * * * The erection of the traffic signal was an appropriate exercise of this power. * * * It was in effect an exercise of the police power...
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