Martin v. City Of Greensboro

• Decision Date: 20 April 1927
• Docket Number: (No. 385.)
• Citation: 137 S.E. 666
• Court: North Carolina Supreme Court
• Parties: MARTIN. v. CITY OF GREENSBORO et al.

(193 N.C. 573)

137 S.E. 666

MARTIN.

v.CITY OF GREENSBORO et al.

(No. 385.)

Supreme Court of North Carolina.

April 20, 1927.

A demurrer admits the allegations of the complaint.

Appeal from Suprior Court, Guilford County; Schenck, Judge.

Action by E. F. Martin against the City of Greensboro and another. From a judgment overruling a demurrer, the defendant City of Greensboro appeals. Reversed.

Robert Moseley, of Greensboro, for appellant.

A. C. Davis and Frazier & Frazier, all of Greensboro, for appellee.

ADAMS, J. The plaintiff brought this suit against the defendants to recover damages for injury to his automobile, said to have been caused by their joint or concurrent negligence. After alleging that the Public Service Company negligently caused one of its street cars, while operated on Tate street, to strike his machine and thereby to injure it, the plaintiff states as against the other defendant the following cause of action:

"That the said city of Greensboro negligently and carelessly placed the curbing for the sidewalk on the east side of Tate street in such close proximity to the street car track of its codefendant, the North Carolina Public Service Company, Inc., as to make it impossible for vehicles to pass on the right-hand side of the said street car track, as such vehicles proceeded northwardly on said Tate street, and negligently and carelessly permitted the said North Carolina Public Service Company, Inc., to lay its street car track in said street in such close proximity to the curbing on the east side of the said Tate street as to make it impossible for automobiles or other vehicles proceeding northwardly along said Tate street to pass on the right-hand side of the street cars proceeding southwardly on the said street car line, when it knew or by the exercise of ordinary care couldhave known that persons operating motor vehicles and complying with the law and ordinances by passing to the right of approaching vehicles and street cars would be placed in a position of peril, and that by so constructing the curbing and signals and permitting the street car track to be laid in such close proximity thereto it created a death trap that proximately and concurrently, together with the acts of negligence of its codefendant as herein alleged, caused the injury and damage of plaintiff's automobile."

To this cause of action the city filed the following demurrer:

"As appears from the face of the complaint the negligence charged against the city occurred in the discharge of its governmental or legislative functions, for negligence in the discharge of which a municipal corporation is not liable in damages."

The demurrer presents the question whether it is negligence for which a municipal corporation may be liable in damages to build a sidewalk so near a street railway track, or to allow a street railway company to build its track so near a sidewalk as to leave insufficient space for an automobile (observing the direction to keep to the right) to pass between the sidewalk and a car on the track.

Municipal corporations derive their powers from the Legislature, and these powers are usually conferred by general statutes or by special charters. So likewise as to public service corporations. As the case comes to this court for the review of a judgment overruling the appellant's demurrer, the charter of neither defendant is before us. Under these circumstances we shall assume for the...