Klingenberg v. City Of Raleigh
Decision Date | 15 December 1937 |
Docket Number | No. 4530.,4530. |
Citation | 194 S.E. 297,212 N.C. 549 |
Parties | KLINGENBERG. v. CITY OF RALEIGH. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; J. W. Pless, Jr., Judge.
Action by Mrs. Antonie Klingenberg against the City of Raleigh. From a judgment for the defendant, the plaintiff appeals.
Affirmed.
This is an action instituted by the plaintiff for the recovery of damages for personal injuries sustained by her as a result of being thrown from the seat of an automobile in which she was riding as a guest along North Person street in the City of Raleigh. At the intersection of North Person street and East Jones street, plaintiff was thrown from the rear seat of an automobile when it struck a valley gutter constructed at said intersection. As a result thereof, she sustained serious injury.
When North Person street was paved, said valley gutter was constructed across said street at the intersection of Jones to provide for surface water. Later, by reason of the heavy traffic, the asphalt surfacing was removed and replaced with concrete. At that time the depth of the valley was decreased so that there was at the time of the accident a dip of six or seven inches in the valley.
After the jury had returned a verdict in favor of the plaintiff, the trial judge set the same aside as a matter of law on authority of Blackwelder v. Concord, 205 N.C. 792, 172 S.E. 392, 90 A.L.R. 1495, and rendered judgment in favor of the defendant. The plaintiff excepted and appealed.
J. M. Broughton, Wm. H. Yarborough, Jr, and Jones & Brassfield, all of Raleigh, for appellant.
Clem B. Holding, of Raleigh, for appellee.
There is no allegation that the valley gutter constructed on North Person street at the point where said street intersects Jones was negligently constructed or that it was in a state of bad repair. The substance of the plaintiff's allegation of negligence is to the effect that the existence of a valley gutter of this type upon a public street makes the street dangerous for traffic and creates hazards to the public, and that it is negligence on the part of the city and a failure to exercise reasonable care to permit such condition to exist and continue.
While the construction and maintenance of public roads and streets is a governmental function, the courts have almost universally permitted recovery against a city or town where injury results from negligence in the construction of a street or from negligent failure to maintain the street in a reasonably safe condition. Where, however, the condition complained of is one which forms a part of the plan of construction of the street, determined upon and adopted by the city or town, it is held by this and other courts that no recovery may be had. The distinction is this: The adoption of plans for the construction of streets requires the exercise of quasi judicial and discretionary powers; whereas, the actual construction and maintenance of the street is ministerial.
A municipality, in determining the character or plan of construction of streets, sidewalks, and other public ways, acts in a legislative, quasi judicial, and discretionary capacity. Therefore, it is not ordinarily liable for injuries resulting from danger or defects inherent in the plan of construction adopted or due solely to a mistake of judgment in adopting the plan. The rule is not limited to cases where the plan adopted was determined in advance, but applies equally where it was ratified and adopted by the municipality after the actual work of construction. 43 C.J. 1015; Finney v. District of Columbia, 47 App.D.C. 48, L.R.A.1918D, 1103; Giaconi v. Astoria, 60 Or. 12, 113: P, 885 118 P. 180, 37 L.R.A., N.S, 1150; Ur-quhardt v. City of Ogdensburg, 91 NY. 67, 43 Am.Rep. 91 note.
In Blackwelder v. Concord, 205 N.C. 792, 172 S.E. 392, 393, 90 A.L.R. 1495, Brogden, J., quotes from Martin v. Greensboro, 193 N.C. 573, 137 S.E. 666, with approval, as follows:
McQuillan, on Municipal Corporations, 2d Ed, § 2799, states the rule as follows:
When North Person street and other streets in that vicinity were paved, it was a proper governmental function of the city of Raleigh to make provision to take care of the surface water. The commissioners determined that catch-basins and a storm sewer were too expensive and decided to use the only other engineering practice for such purpose, which was the use of valley gutters.
When the street was constructed, the top surfacing of the valley gutters, as well as of the street, was of asphalt composition. A change of the surfacing to concrete so as to better care for the increasing traffic upon this street was not a departure from the original plan, such as would impose liability upon the city.
It might be well to note that while the statute prescribing rules and regulations for the operation of motor vehicles provides for certain maximum limits of speed, the controlling rule is: That a motorist must at all times operate his motor vehicle with due regard to the width, traffic, and condition of the highway. It is...
To continue reading
Request your trial-
U.S. v. Humphrey
... ... alone sometimes insulates the mind against the overwhelming logic of reality." Klingenberg v. City of Raleigh, 212 N.C. 549, 194 S.E. 297, 302 (1937) (Clarkson, J., dissenting) ... 9 ... ...
- Barnes v. Town Of Wilson, 102.
-
Barnes v. Town of Wilson
... ... for from 6 to 12 months held for the jury. Sehorn v. City ... of Charlotte, 171 N.C. 540, 88 S.E. 782. Whether hydrant ... attached to building and ... complained of which was incidental thereto. Klingenberg ... v. Raleigh, 212 N.C. 549, 194 S.E. 297. As this question ... is not presented, I refrain from ... ...
- Hunt v. City Of High Point, 670.