Mosseller v. City of Asheville, 114

• Citation: 147 S.E.2d 558,267 N.C. 104
• Decision Date: 20 April 1966
• Docket Number: No. 114,114
• Parties: , 20 A.L.R.3d 1286 Norene Allen MOSSELLER v. CITY OF ASHEVILLE.
• Court: United States State Supreme Court of North Carolina

Page 558

147 S.E.2d 558

267 N.C. 104, 20 A.L.R.3d 1286

Norene Allen MOSSELLER v. CITY OF ASHEVILLE.

No. 114.

Supreme Court of North Carolina.

April 20, 1966.

Williams, Williams & Morris, Asheville, for plaintiff appellant.

Van Winkle, Walton, Buck & Wall, by O. E. Starnes, Jr., Asheville, for defendant appellee.

LAKE, Justice.

The judgment of nonsuit must be sustained unless the evidence offered by the plaintiff, considered in the light most favorable to her, is sufficient to show negligence by the city which was the proximate cause of the plaintiff's fall and injury. The burden is upon the plaintiff to establish such negligence and causation. Walker v. Town of Wilson, 222 N.C. 66, 21 S.E.2d 817.

When a municipal corporation operates a system of waterworks for the sale by it of water for private consumption and use, it is acting in its proprietary or corporate capacity and is liable for injury or damage resulting from such operation to the same extent and upon the same basis as a privately owned water company would be. Faw v. North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Candler v. Asheville, 247 N.C. 398, 101 S.E.2d 470; Woodie v. North Wilkesboro, 159 N.C. 353, 74 S.E. 924; McQuillin, Municipal Corporations, 3rd ed., § 53.104; 56 Am.Jur., Waterworks, § 38. It is not an insurer against injury or damage by water leaking from such system. It is liable only if the escape of the water was due to its negligence either as to the initial break in the water line or in its failure to repair or cut off the line so as to stop the flow. 94 C.J.S. Waters, § 309. The reasonable care which is required of the city when engaged in such operation, like that required of a privately owned water company, includes the exercise of ordinary diligence to discover breaks in its lines and to correct such defects of which it has notice, or which it could have discovered by the exercise of reasonable inspection. Since the record is silent as to what caused the leak to develop in the water line, the plaintiff, in order to recover from the city as the operator of a system of waterworks, must show that the city was negligent in its failure to take steps to stop the flow of water after it had actual or constructive notice of the leak.

As an alternative theory upon which to recover for her injury, the plaintiff asserts the failure of the city to keep its public street in a safe condition. While the city is not an insurer of the safety of one who uses its streets and sidewalks, it is under a duty to use due care to keep its streets and sidewalks in a reasonably safe condition for the ordinary use thereof. G.S. § 160--54. The controlling principles of law are thus stated by Parker, J., now C.J., in Smith v. City of Hickory, 252 N.C. 316, 113 S.E.2d 557:

'The governing authorities of a town or city have the duty imposed upon them by law of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who use them in a proper manner. Liability arises only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect in the street or sidewalk and the injury: he must also show that the officers of the town or city knew, or by ordinary diligence, might have known of the defect, and the character of the defect was such that injuries to travellers using its street or sidewalk in a proper manner might reasonably be foreseen. Actual notice is not required. Notice of a dangreous condition in a street or sidewalk will be imputed to the town or city, if its officers should have discovered it in the exercise of due care.'

To the same effect see: Faw v. North Wilkesboro, supra; Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799; Bailey v. Town of Winston, 157 N.C. 252, 72 S.E. 966; Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309.

It will be observed that in this case the water did not escape from the city's property and invade the property of another. It flowed from the break in the pipe, which was under the street, up to the surface of the street and thence down the gutter line of the street, eventually passing, presumably, into the city's system of storm sewers. Thus, there is no question here of trespass or of property damage. The evidence indicates that one observing the flow of water would have no reason to anticipate damage to any property thereby.

The plaintiff must recover, if at all, on the theory that the city was negligent in failing to stop the flow of water down the gutter line of its street because it should have foreseen danger of personal injury to a user of the street if the flow continued. This is true whether she rests her case upon the duty of the city as the operator of a water system or upon the duty of the city to keep its streets in a reasonably safe condition. In order to hold the city liable, it must appear that the city knew or should have discovered the water was so running upon the street; that it should have foreseen danger of personal injury to one using the street if the flow of water was not checked; and that it failed to act to stop the flow within a reasonable time.

It is the duty of the city to exercise a reasonable and continuing supervision over its streets in order that it may know their condition and it is held to have knowledge of a defect which such inspection would have disclosed to it. Faw v. North Wilkesboro, supra; Bailey v. Town of Winston, supra. However, the city's duty to inspect and discover defects in its streets does not go beyond the duty to exercise reasonable care in that respect. Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675. No arbitrary rule can be laid down with reference to how frequently the city must inspect its streets. Revis v. City of Raleigh, 150 N.C. 348, 63 S.E. 1049.

The evidence indicates that the flow of water along the side of Furman Court was not large in volume. If an officer or employee of the city had passed the end of this one-block, dead-end street and had observed...