Hunt v. City of High Point

• Decision Date: 31 January 1946
• Docket Number: 670.
• Parties: HUNT v. CITY OF HIGH POINT.
• Court: North Carolina Supreme Court

36 S.E.2d 694

226 N.C. 74

HUNT v. CITY OF HIGH POINT.

No. 670.

Supreme Court of North Carolina

January 31, 1946

This is an action to recover damages for the personal injury and death of plaintiff's intestate through the alleged negligence of the defendant municipality in failing to provide handrails or guards, or to sufficiently light a bridge, part of the city street, constituting a danger to life and limb of those travelling thereupon, or to provide other appropriate means of protection.

The bridge, it is alleged, was over a creek or ravine running through that part of the city, and plaintiff's intestate attempting to cross it in the nighttime, fell off the bridge into the ravine upon the rocks, breaking his hip, remaining partly submerged in the water, unable to extricate himself for several hours. He finally died as the result of the injury.

The defendant demurred to the complaint as not stating a cause of action for that it appears on the face of the declaration that in both respects complained of--that is, as to furnishing handrails upon the bridge and as to lighting it--the municipality was acting in a sovereign or governmental capacity, was immune from suit, and whatever injury plaintiff's intestate sustained was damnum absque injuria. The demurrer was sustained, and plaintiff appealed.

Byron Haworth and Walser & Wright, all of High Point, for appellant.

G H. Jones, of High Point, for appellee.

SEAWELL Justice.

In no other of its aspects is the doctrine of 'governmental immunity' more widely challenged than in its application to dangerous conditions in the streets created by defects of construction. Speaking of the rule of liability now prevailing in the majority of the states, McQuillin on Municipal Corporations, Revised Vol. 7 (1945), § 2901, has this to say: 'Apart from statute, late decisions in a majority of the states affirm implied municipal liability to private action for injuries resulting from defective public ways. In other words, the right to recover against a city for actionable negligence for defects in its streets and sidewalks is based on the common law, and requires no statute to proclaim it.' And further: 'Generally concerning public ways, the judicial decisions have established and imposed these obligations upon the municipal authorities: (1) Streets must be constructed in a reasonably safe manner, and to this end ordinary care must be exercised; (2) they must at all times be kept in proper repair or in a reasonably safe condition insofar as may be by the exercise of ordinary diligence and continuous supervision; (3) reasonably safe condition or proper repair implies that bridges, dangerous enbankments, walls, declivities and like places and things adjoining or near the way must be safeguarded against by adequate railings, barriers or appropriate signals.'

It will be observed that this analytical statement of municipal duty is presented almost in ipsissimis verbis, and approved, in Willis v. New Bern, 191 N.C. 507, loc. cit. 510, 511, 132 S.E. 286, 288. It is to be noted that in Willis v. New Bern no statute is referred to or made the basis of decision, although many of the cited cases depend on the force of the statute long existing in this State.

It has been repeatedly held that G.S. § 160-54, relating to streets and bridges, imposes on towns and cities the positive duty to maintain the streets in a reasonably safe condition for travel, and that negligent failure to do so will render the municipality liable to private action for proximate injury. Bunch v. Edenton, 90 N.C. 431; Russell v. Monroe, 116 N.C. 720, 726, 121 S.E. 550, 47 Am.St.Rep. 823; Neal v. Marion, 129 N.C. 345, 40 S.E. 116; Fitzgerald v. Concord, 140 N.C. 110, 113, 52 S.E. 309; Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 663; Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807; Radford v. Asheville, 219 N.C. 185, 13 S.E.2d 256; Waters v. Belhaven, 222 N.C. 20, 21 S.E.2d 840; Millar v. Wilson, 222 N.C. 340, 23 S.E.2d 42.

It might well be questioned whether in the face of such a statute, upon which the public have a right to rely, preservation or continuance of an original structure palpably dangerous to the public could be reconciled with the proper maintenance of the streets in a reasonably safe condition for travel. In most other jurisdictions, as we have seen, that question has been resolved against the municipality. It might also be questioned whether, after the enactment of such a statute, a municipality could claim immunity from liability for obviously dangerous defects of construction subsequently installed. On both questions the weight of authority is generally against immunity. But in our own jurisdiction the defense of governmental immunity, or the existence of judicial discretion, has been upheld where the conduct of the municipality is called in question with respect to original planning and construction alone. Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543; Martin v. Greensboro, 193 N.C. 573, 137 S.E. 666; Blackwelder v. Concord, 205 N.C. 792, 172 S.E. 392, 90 A.L.R. 1495; Klingenberg v. Raleigh, 212 N.C. 549, 194 S.E. 297.

If the plaintiff had predicated the charge of negligence solely or exclusively on defect or negligence in the original construction of the street, and not to the breach of an incidental duty of safeguarding the danger thus created, the defendant might have relied on these cases with assurance. But the allegations of the complaint, and this appeal, raise the question whether it was the duty of the municipality to provide such means as ordinary prudence might require to alleviate the danger or avert injury. On this question authority here and elsewhere is uniformly against appellee. Willis v. New Bern, supra; Speas v. Greensboro, supra; Comer v. Winston-Salem, 178 N.C. 383, 100 S.E. 619; Graham v. Charlotte, supra; Michaux v. Rocky Mount, supra; Hamilton v. Rocky Mount, 199 N.C. 504, 154 S.E. 844.

It is the existence of the danger, not its origin, with which the unwarned traveller is concerned, and which engages the attention of the safety laws. A municipality cannot, with impunity, create in its streets a condition palpably dangerous, neglect to provide the most ordinary means of protection against it, and avoid liability for proximate injury on the plea of governmental immunity.

In Speas v. Greensboro, supra, Justice Adams, writing the opinion for the...