Taylor v. Town of Hertford

• Decision Date: 14 December 1960
• Docket Number: No. 17,17
• Citation: 253 N.C. 541,117 S.E.2d 469
• Parties: Ann Taylor Hollowell TAYLOR, Administratrix of the Estate of Wayland C. Hollowell, Jr., deceased, v. TOWN OF HERTFORD, a Municipal Corporation.
• Court: North Carolina Supreme Court

Page 469

117 S.E.2d 469

253 N.C. 541

Ann Taylor Hollowell TAYLOR, Administratrix of the Estate of Wayland C. Hollowell, Jr., deceased, v. TOWN OF HERTFORD, a Municipal Corporation.

No. 17

Supreme Court of North Carolina.

Dec. 14, 1960

John R. Jenkins, Jr., Aulander, LeRoy, Goodwin & Wells, Elizabeth City, for plaintiff appellant.

Charles E. Johnson, Hertford, John H. Hall, Elizabeth City, for defendant appellee.

WINBORNE, Chief Justice.

In sustaining the motion to nonsuit, the court apparently relied on G.S. §§ 136-41.1, 136-93 and 160-54. The record shows that counsel for defendant in making motion for judgment as of nonsuit called primarily to the Judge's attention three statutes which defendant contends either separately or in combination one with the other absolutely control the question, and basically are the premise that the control and the right to control the area under consideration was not that of the Town of Hertford but it was that of the State Highway Commission, or in any event, some person or some association or corporation other than the Town of Hertford; and that under the doctrine that in the absence of responsibility there can be no liability in a negligence case. In this connection defendant directs attention to declarations by this Court in the cases of Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675, and Mack v. Marshall Field & Co., 218 N.C. 697, 12 S.E.2d 235.

The Jones case, supra [124 N.C. 310, 32 S.E. 676], was for the recovery of damages for personal injuries occasioned by reason of a dead limb falling on plaintiff from a shade tree on sidewalk of a street in Greensboro. And the Court in speaking of liability of the city growing out of the power conferred on the city over its streets, states that 'each case must depend upon its exact facts and upon the circumstances of the particular case in view of statutory provisions of the State.'

And in the Mack case, supra [218 N.C. 697, 12 S.E.2d 237], it is said: '* * * in the absence of any control of the place and of the work there was a corresponding abence of any liability incident thereto. That authority precedes responsibility, or control is a prerequisite of liability, is a well recognized principle of law as well as of ethics.'

And defendant contends, and we hold rightly so, that these statutes clearly demonstrate that the authority and control over the tree referred to in this action was that of the State Highway Commission.

G.S. § 136-41.1 provides that 'from and after July 1, 1951, all streets within municipalities which now or hereafter may form a part of the State highway system shall be maintained, repaired, improved, widened, constructed and reconstructed by the State Highway Commission, to the same extent and in the same manner as is done on roads and highways of like nature outside the corporate limits. And the costs of such activities shall be paid from the State Highway and Public Works fund.'

While it is true that the General Assembly of North Carolina by act of 1959 Session Laws, Chap. 687, Sec. 5, repealed G. S. § 136-41.1, the repealing act expressly did not apply to pending litigation, and the instant action was then pending,--the summons therein being dated 8 January, 1959, and service thereof 9 January, 1959, and trial in February 1960.

The appellee contends that this statute, ...