Whitacre v. City of Charlotte

• Decision Date: 03 January 1940
• Docket Number: 529.
• Citation: 6 S.E.2d 558,216 N.C. 687
• Parties: WHITACRE v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

6 S.E.2d 558

216 N.C. 687

WHITACRE v. CITY OF CHARLOTTE.

No. 529.

Supreme Court of North Carolina

January 3, 1940

Plaintiff instituted this action to recover damages for death of his intestate alleged to have been caused by the negligent failure of defendant to maintain a foot bridge across a stream within the city limits. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained.

The material facts alleged in the complaint may be briefly stated as follows: Sugaw Creek flows north and south through a portion of the City of Charlotte, and through the grounds of the Thompson Orphanage. There are streets east and west of the orphanage property paralleling the stream. By permission of those in charge of the orphanage, residents of the community and the public were accustomed to use a walkway a short distance across the orphanage ground on either side of and approaching the creek and to cross the creek, formerly on stepping stones, now by the bridge erected by the city. On either side of the creek are located city schools, and the pathway and bridge are used by those going to and from said schools as well as by the public. In 1929, at the request of citizens and residents of the locality, and for the public convenience, the city by resolution authorized the construction of a bridge across the stream, at a cost of $268. While the resolution of the city commissioners authorized "the erection of a bridge over Sugaw Creek on First Street between Cecil and Morrow," at the request of the local residents the bridge was constructed several hundred feet south of the point where First Street extended would have crossed the creek. On one or two occasions the city closed the bridge temporarily for the purpose of repairing it. The complaint alleged that, due to the negligent failure of the city to properly construct, inspect and maintain the bridge, it fell while plaintiff's intestate was thereon, causing his death.

From judgment sustaining the demurrer, plaintiff appealed.

Uhlman S. Alexander, of Charlotte, for plaintiff, appellant.

J M. Scarborough, of Charlotte, for defendant, appellee.

DEVIN Justice.

The sufficiency of the complaint to state a cause of action against the City of Charlotte is challenged by the demurrer upon the ground that it appears that the foot bridge complained of was not constructed on a street, or on property belonging to the city, and did not immediately connect city streets or public ways, and that consequently in law no duty was imposed upon the city to inspect, maintain and repair the bridge.

There is no allegation in the complaint that the walkways leading to the bridge were over the property of the city. The public who passed over the walkways leading to the bridge did so by permission of the owner of the land. The allegation of permissive use of the walkway across the lands of the Thompson Orphanage by the public since the construction of the bridge, or before when the stream was crossed by means of stepping stones, is insufficient to show that the public had acquired title to the way as against the owner of the land, either by adverse user or implied dedication. Hemphill v. Board of Aldermen of Forest City, 212 N.C. 185, 193 S.E. 153.

However it does appear from the complaint that for the convenience of the public the city undertook to construct a bridge within the city limits, at the public expense, and to keep it in repair and to exercise control over it, and thereby invited the public to travel upon it and to use it as a public way.

It is a well recognized rule that a duty rests upon a municipal corporation to maintain its streets in proper repair and reasonably safe condition (Willis v. New Bern, 191 N.C. 507, 132 S.E. 286), and this duty applies as well to bridges under its control used by the public for the purpose of travel. McQuillin, Municipal Corporations (2nd Ed.) sec 2938; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 663.

While it is not specifically alleged that the place of injury was in a public way or that the bridge and walkways across the lands of the Thompson Orphanage constituted a public way (Bickel Paving Co. v. Yeager, 176 Ky. 712, 197 S.E. 417), or that the plaintiff's intestate was injured by reason of any defect in a city street or public way (Duren v. Charlotte, 210 N.C. 824, 185 S.E. 434), it does appear from the facts alleged, inferentially, that the city had treated and held out the bridge as a public way. It constructed the bridge for use by the public as a means of crossing the stream. It exercised control over the bridge, and impliedly invited the public to use it. The demurrer for the purpose of testing the sufficiency of the complaint admits not only the specific facts alleged therein but also relevant inferences of fact necessarily deducible therefrom. Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369.

The general rule is stated in McQuillin, Municipal Corporations (2nd Ed.) sec. 2922, as follows: "Where an injury occurs on a road or sidewalk, and it is sought to hold the municipality liable in damages, the first question which presents itself is whether the place of the accident was a public highway under the control of the municipality. If not a public highway, the municipality is not liable. However, if the municipality has exercised control over the way and improved or recognized it as a public street, that is ordinarily sufficient, and in such case the municipality will be estopped to deny that the way was a public street. The mode in which the street was established is immaterial. *** The question whether the title to the street is in the municipality is immaterial. The material thing which must exist is the act of the municipality inducing the people to believe that the way is a public one. *** User by the public of streets and ways and recognition of such user by the municipality may constitute such streets and ways public as to municipal liability. Thus a municipality, it was held, was liable for injuries resulting from defective sidewalks constructed on private property where they were treated by the city as public...