Willis v. City of New Bern

• Decision Date: 31 March 1926
• Docket Number: 149.
• Parties: WILLIS v. CITY OF NEW BERN.
• Court: North Carolina Supreme Court

132 S.E. 286

191 N.C. 507

WILLIS v. CITY OF NEW BERN.

No. 149.

Supreme Court of North Carolina

March 31, 1926

Appeal from Superior Court, Craven County; Bond, Judge.

Civil action for damages by D. H. Willis, administrator of Mitchell Willis, deceased, against the City of New Bern. Judgment for plaintiff, and defendant appeals. No error.

Traveler using street must exercise ordinary care for his own safety.

The city of New Bern is located at the junction of Neuse and Trent rivers, and the streets running north and south terminate, at the southern end, at Trent river, and the streets running east and west terminate, at the eastern end at Neuse river. This has been the condition for more than 100 years. Craven street is a public highway of New Bern, running through the residential and business sections, passing the courthouse, post office, city hall, and other public places in the city. The southern terminus of said street is at Trent river. This terminus is used as a dock or public wharf, and has been so used for 50 years or more. The surface of the street is about 7 feet above the water, and terminates abruptly above deep water. At the time of the injury complained of warehouses had been erected on both sides of the terminus of said street, extending therefrom and in line therewith into the water a distance of 125 or 150 feet leaving a body of water known as a boat slip between the warehouses and up to the terminus of the street. The street had been paved by the city of New Bern with oyster shells and some 18 or 20 years ago the street was paved with brick up to the terminus, leaving a slight incline from the terminus, extending back for some feet northward. A railroad track was laid across the southern end of Craven street about 90 feet from the terminus. A large arc light had been placed on the eastern sidewalk or curbing of Craven street at a distance of 76 feet from the terminus of the street at deep water. Craven street runs north and south. Up until about 7 years ago there was a wharf log at the terminus of the street, which extended about 8 or 12 inches above the surface thereof. This wharf log had rotted away. On the night of April 22, 1925, Mitchell Willis, the deceased, came into New Bern on a boat and docked at the Hollister & Cox Warehouse or wharf about 150 feet from the terminus of Craven street. The deceased lived in Carteret county, but had visited New Bern at intervals. The night of April 22d was a dark, rainy night and the streets were wet. Mitchell Willis borrowed a Ford car from his brother, taking with him a boy named Clyde Gray, and, in driving along Craven street, drove off the terminus thereof into deep water, killing himself and the boy who was riding with him. At the time of his death the deceased was 21 years old.

There was no barrier, rail, guard, light, or any device for giving notice that the street terminated abruptly above deep water. The plaintiff contends that it constituted negligence to leave the street in this condition, and particularly so when the warehouses extended out into the water on each side of the street, which would give the impression to a traveler, not actually acquainted with the conditions, that the street extended certainly to the length of these warehouses. The defendant contended that the arc light on the curb stone on the east side of Craven street furnished sufficient light to warn the plaintiff's intestate of danger if he had been keeping a proper lookout, and that the river itself was also a warning of danger.

The issues and answers of the jury thereto were as follows:

(1) Was plaintiff's intestate killed by the negligence of the defendant as alleged in the complaint? Answer: Yes. (2) If so, did plaintiff's intestate, by his own negligence, contribute to and cause his death as alleged in the answer? Answer: No. (3) What damage, if any, is plaintiff entitled to recover from defendant? Answer: $8,000. (4) Did plaintiff, D. H. Willis, qualify as administrator of Mitchell Willis' estate? Answer: Yes.

From a judgment upon the verdict, the defendant appealed.

E. M. Green, Moore & Dunn, and R. A. Nunn, all of New Bern, for appellant.

J. H. Davis, Guion & Guion, and D. L. Ward, all of New Bern, for appellee.

BROGDEN J.

Craven street in the city of New Bern terminates abruptly at deep water on Trent river. The surface of the street at its terminus is 7 or 8 feet above the water of the river.

The courts have universally held that a street includes the roadway, or traveled portion, and sidewalks. A street must also include the terminus thereof. Public highways belong, from side to side and end to end, to the public, and the rule is well founded, both in reason and judicial pronouncement, that the public is entitled to free passage along any portion of it. Elliott on Roads and Streets, vol. 2, § 828; Graham v. Charlotte, 120 S.E. 466, 186 N.C. 663. It is essential to the public safety that the terminus of a street shall be kept in as reasonably safe condition as any other portion thereof, for the manifest reason that it would be obviously futile to charge municipal authorities with the duty of keeping a street in a reasonably safe condition and yet permit it to terminate abruptly in an unsafe and dangerous manner. It would be a ruthless doctrine to allow a public highway to be improved for its entire length, and thereby invite a traveler thereon, and, after being lulled into a sense of safety, to be suddenly put to death by an unguarded embankment, precipice, or other dangerous defect, when such defect was known or could have been discovered by the exercise of reasonable diligence, and when, of course, the traveler was using due care for his own safety.

While it appears that there was a dock or wharf at the terminus of Craven street, it also appears from the evidence that the city of New Bern had originally paved the street with oyster shells to the wharf log, and 15 or 18 years ago had paved the street with permanent paving up to the wharf log. It is immaterial, therefore, as to whether this street terminated in a public wharf or a dock, for the reason that the city had exercised control over every part of the street, including its terminus, for many years. Indeed, the overwhelming weight of testimony introduced by the defendant was to the effect that the terminus of this street had been used by the public in connection with the street itself for more than 50 years. So that, as far as the rights of the parties are concerned, this wharf or dock was the terminus of one of the principal streets of the city of New Bern, and therefore the liability of the defendant must be governed by the established rules of law regulating streets and highways. What, then, are the duties which the defendant owed the public?

The decisions of this state, and, indeed, of all the states, have established and imposed the following positive obligations upon municipal authorities with reference to streets and highways, to wit: (1) They shall be constructed in a reasonably safe manner, and to this end ordinary care must be exercised at all times; (2) they shall be kept in proper repair or in a reasonably safe condition to the extent that this can be accomplished by proper and reasonable care and continuing supervision; (3) proper repair implies that all bridges, dangerous pits, embankments, dangerous walls, and the like perilous places and things very near and adjoining the streets shall be guarded against by proper railings and barriers or other reasonably necessary signals for the protection of the public. Russell v. Monroe, 21 S.E. 550, 116 N.C. 720, 47 Am. St. Rep. 823; Neal v. Marion, 35 S.E. 812, 126 N.C. 412; Fitzgerald v. Concord, 52 S.E. 309, 140 N.C. 110; Brown v. Durham, 53 S.E. 513, 141 N.C. 249; Darden v. Plymouth, 82 S.E. 829, 166 N.C. 492; Foster v. Tryon, 85 S.E. 211, 169 N.C. 182; Duke v. Belhaven, 93 S.E. 472, 174 N.C. 96; Stultz v. Thomas, 109 S.E. 361, 182 N.C. 470; Goldstein v. Railroad, 125 S.E. 177, 188 N.C. 636.

It is further established by the decisions referred to that a municipal corporation is not an insurer of the safety of its streets, nor is any duty imposed upon it to warrant that the condition of its streets shall at all times be absolutely safe. Neither will the breach of such duties imposed warrant a recovery by the mere showing that a defect existed and that an injury has resulted proximately therefrom. It must be further shown that the governing authorities of the municipality had notice of the defect. This essential notice arises from: (1) Actual notice or knowledge directly imparted to the...