Speas v. City of Greensboro

• Decision Date: 22 February 1933
• Docket Number: 400.
• Citation: 167 S.E. 807,204 N.C. 239
• Parties: SPEAS v. CITY OF GREENSBORO et al.
• Court: North Carolina Supreme Court

167 S.E. 807

204 N.C. 239

SPEAS v. CITY OF GREENSBORO et al.

No. 400.

Supreme Court of North Carolina

February 22, 1933

Appeal from Superior Court, Guilford County; Oglesby, Judge.

Action by Richard W. Speas, by his next friend, E. G. Shugart against the City of Greensboro and another. Judgment for plaintiff, and defendants appeal.

No error.

Permission to file amended complaint against new party for purpose of prosecuting action against defendants as joint tort-feasors held matter of discretion (C.S. § 547, and § 551, as amended by Pub.Laws 1929, c. 95).

This is an action for personal injury alleged to have been caused by the negligence of the defendants.

At the center of the intersection of Greene and Gaston streets, the city of Greensboro maintains a traffic device known as a "silent policeman." It consists of a concrete block approximately three feet wide and two feet high anchored to the street pavement, and a metal base projecting upward from the block and supporting an electric signal with alternating red and green lights. On the morning of December 6, 1930, the plaintiff was riding in a Ford roadster driven by the defendant Wall. It had one seat, and the curtains were up. The car when driven into the intersection of Greene and Gaston streets struck the traffic device, and the plaintiff was seriously injured.

The jury found that the plaintiff's injury had been proximately caused by the negligence of each of the defendants, and that the plaintiff had not been negligent and assessed the damages.

Judgment for the plaintiff; appeal by the defendants upon assigned error.

Andrew Joyner, Jr., of Greensboro, for appellant City of Greensboro.

Sapp & Sapp, of Greensboro, for appellant Wall.

Manly Hendren & Womble, of Winston Salem, for appellee.

ADAMS Justice.

The record is voluminous, but the controversy involves only a few familiar principles of law. A brief consideration of the exceptions is all that is necessary.

Neither defendant is entitled to a judgment of nonsuit. The motion of corporate defendant rests upon three propositions: (1) The evidence of negligence against the city is not sufficient to justify the submission of an issue to the jury; (2) the plaintiff's injury was due to the independent and intervening acts of the defendant Wall; (3) according to his own evidence, the negligence of the plaintiff proximately contributed to his injury. The motion of the defendant Wall is founded on the two propositions that the plaintiff was negligent and that he was not.

The exercise of due care to keep its streets in a reasonably safe and suitable condition is one of the positive obligations imposed upon a municipal corporation. The discharge of this obligation cannot be evaded on the theory that in the construction and maintenance of its streets the municipality acts in a governmental capacity. Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Willis v. New Bern, 191 N.C. 507, 132 S.E. 286; Michaux v. Rocky Mount, 193 N.

C. 550, 137 S.E. 663; Hamilton v. Rocky Mount, 199 N.C. 504, 154 S.E. 844.

The court instructed the jury that the erection of the "silent policeman" at the intersection of the streets was not enough to constitute negligence (Valley v. Gastonia, 203 N.C. 664, 166 S.E. 791), and left to the determination of the jury the question whether the city had used due care in providing adequate lights. If the city failed to exercise such care, it was negligent. Bunch v. Edenton, 90 N.C. 431; Bailey v. Winston, 157 N.C. 253, 72 S.E. 966; Pickett v. R. R., 200 N.C. 750, 158 S.E. 398. Several witnesses testified that the lights on the traffic device were not burning when the wreck occurred. Indeed, the plaintiff offered evidence that there were no lights on the streets. It is not essential that the city should have had actual notice that the lights were not burning. Notice may be implied. One of the witnesses said that the lights had been turned on and off in the morning irregularly for a long period, and this was at least some evidence of implied notice. Dillon v. Raleigh, 124 N.C. 184, 32 S.E. 548; Bailey v. Winston, supra; Willis v. New Bern, supra; Pickett v. R. R., supra.

We do not regard the driving of the car on the street as an intervening act which superseded the causal relation between the city's negligence and the plaintiff's injury. On the contrary, the danger of traversing the intersecting streets by those having occasion to travel in vehicles and the probability of injury resultant from inadequate lights are matters which should have been in the reasonable contemplation of the city.

In our opinion there is not sufficient evidence to support the contention that the plaintiff's action should be dismissed on the ground of his contributory negligence. The morning was dark and cold. The plaintiff assumed a comfortable position in the car, "placing his knees against the...