Michaux v. City of Rooky Mount

Adams, J. In 1907 tbe General Assembly amended tbe charter of tbe city of Rocky Mount, investing it with all tbe property, rights, franchises, and powers of tbe town of Rocky Mount, and conferring all other powers, rights, and privileges requisite or pertaining to municipal corporations. Private Laws 1907, cb. 209. There is a public highway which extends from Wilson to a place in tbe city of Rocky Mount, where tbe Cokey road crosses tbe Norfolk and Carolina Railroad; and in 1913 tbe boundaries of tbe city were extended so as to include, with other terri — 551 — tory, that part of the Wilson road lying between tbe railroad and a prong of Tyancokey Swamp. Private Laws 1913, ch. 208. It is admitted tbat tbis is one of tbe principal public roads leading into Eocky Mount, and tbat tbe part of it between tbe railroad and tbe bridge where tbe intestate’s death occurred is within tbe corporate limits of tbe city, tbe corporate line extending to tbe middle of tbe stream. Owing to a heavy rainfall, the bridge, which was a concrete structure, gave way and fell into tbe water on Monday morning, 29 September, 1924, leaving above tbe water an open space of thirty feet. Two days afterwards, about 8 o’clock in tbe evening, while it was misty and dark, J. E. Houck and the deceased started from Eocky Mount to Wilson in a Ford coupe. Tbe deceased was at tbe wheel. Apprehending no danger, be drove upon tbe bridge and into tbe open space; tbe car went into tbe water, upside down, and “filled up like a bucket.” Houck escaped; tbe ■ deceased was drowned. The city bad erected no barrier, bad displayed no light, bad given no warning of tbe defect in tbe bridge. Tbe plaintiff alleged, and by its verdict tbe jury said'that tbe intestate’s death was caused by tbe city’s negligence. Tbe specific allegations of negligence relate to the defective bridge and tbe failure to repair it, or to inspect it, or to warn tbe public of tbe danger. Tbe duty imposed upon a municipal corporation with respect to' thoroughfares within its corporate limits has been prescribed by a number of our decisions, and tbe principles upon which it rests have been plainly stated. Tbe governing authorities are charged with tbe duty of exercising due care to keep tbe streets, sidewalks, drains, and bridges in a reasonably safe condition, and tbis includes tbe exercise of due care as to inspection and continuing supervision. If in a street there is a pit, ditch, excavation, or other defect which menaces danger to tbe public, tbe authorities must exercise ordinary care in guarding tbe place by means of barriers, or lights, or such other instrumentality as may be reasonably sufficient for tbis purpose. They are not insurers, of course; they do not warrant tbe safe condition of tbe streets; but they are held to tbe responsibility of exercising proper care to keep and maintain them in a reasonably safe condition. A breach of duty occurs if with actual or constructive knowledge of tbe peril they fail to exercise tbe degree of care imposed upon them by tbe law. Fitzgerald v. Concord, 140 N. C., 110; Bailey v. Winston, 157 N. C., 253; Smith v. Winston, 162 N. C., 50; Foster v. Tryon, 169 N. C., 182; Sehorn v. Charlotte, 171 N. C., 540; Dowell v. Raleigh, 173 N. C., 197; Bailey v. Asheville, 180 N. C., 645; Tinsley v. Winston, 192 N. C., 597. See Annotation to Elam v. Mt. Sterling, 20 L. R. A. (N. S.), 518. Tbe defendant, we understand, without impeaching tbe soundness of these principles, takes tbe position tbat they are not applicable to tbe — 552 — present case for the reasons now to be given. In 1907 the Legislature established the Bocky Mount Boad District in the counties of Nash and Edgecombe. Public Laws 1907, ch. 814. The district embraces several hundred square miles. The road commission was given supervision and control of the convict force and supervision of all public roads in the district. The road tax was set aside as a special fund to be used in the construction, improvement, and maintenance of the public roads in the district and bridges that were not to cost more than fifty dollars. In section 18 it is provided: “No money shall be expended by the said road commission on any street of any incorporated town or city within said road district: Provided, however, that this section shall not apply to that portion of any main road or thoroughfare directly leading from or into Bocky Mount one-half mile and more from the center of said town or city of Bocky Mount, and for the purpose of this act the middle of the main track of the Atlantic Coast Line Bailroad directly in front of the middle of the passenger station is declared to be the center of Bocky Mount.” There is evidence tending to show that upon the passage of this act the road commission took control of the part of the Wilson road which lies between the run of Tyancokey Swamp and the Cokey road, and exercised control over it continuously thereafter until the day of the alleged injury and death; and that when the concrete bridge was built, the road crossing the swamp was changed and reopened about twenty feet west of the place occupied by the old road, the part recently constructed extending about one hundred and seventy-five yards. The defendant contends that the road commission had exclusive control of the road; that there was no causal connection between the city’s failure to keep the road in repair and the death of the intestate; and that liability attaches only when the duty to repair and to safeguard the public resides in a single governmental agency. These contentions present the specific question whether the act creating the road commission relieves the city, having actual or constructive notice of the danger, of the obligation to give notice of the peril. We should be reluctant to accede to the proposition that -the duty of inspection and maintenance devolved exclusively upon the road commission. Perhaps it was thus imposed before the corporate limits of the city were extended, but after the parts of the road in question was taken into the city limits, was there no change in the situation? “A public highway in rure, upon its inclusion by incorporation or annexation, within the municipal boundaries, becomes ipso facto a street, and subject to municipal control.” 28 Cyc., 837. In Moore v. Meroney, 154 N. C., 158, it is said: “When a public highway enters an incorporated town, or such town builds up on one already existent, it usually follows that the highway, or — 553 — so much, of it as is within the corporate limits, comes under the regulation and control of the corporate authorities as a part of the public streets. Elliott on Streets and Roads, secs. 415 and 416. In the absence of constitutional restraint, these authorities may have power to vacate or discontinue a street or public way, but when such street has been once established they can only do so by legislative sanction expressly given or necessarily implied from powers which are so conferred, and then compensation must be made to abutting owners whose property is injured. Moose v. Carson, 104 N. C., 431; Chair Co. v. Henderson, 121 Ga., 399.” And in Gunter v. Sanford, 186 N. C., 452: “When a new governmental instrumentality is established, such as a municipal corporation, it takes control of the territory and affairs over which it is given authority to the exclusion of other local governmental instrumentalities. The fact that a highway extends through the corporate limits of a town or city does not deprive the municipality of its exclusive control over the streets or relieve it of the duty of improving and keeping them in repair. 'The object of incorporating a town or city is to invest the inhabitants of the' locality with the government of all matters that are of special municipal concern, and certainly the streets are as much of special and local concern as anything connected with a town or city can well be. It ought, therefore, to be presumed that they pass under the exclusive control of the muncipality as soon as it comes into existence under the law.’ 1 Elliott on Eoads and Streets, sec. 505; 2 Cooley on Taxation, 1251.” See, also, Gastonia v. Cloninger, 187 N. C., 765. It is true that the municipality takes the land and corporate responsibility therefor in the condition in which it existed at the date of inclusion (28 Cyc., supra), but there is reason to doubt whether the general rule we have given is affected by the act establishing the road commission. The case of Waynesville v. Satterthwait, 136 N. C., 226, seems to be authority against the defendant’s position. There the board of aldermen of Waynesville were empowered by special act to lay off, widen and straighten new streets in the town when in their opinion the public interest required the exercise of such power. By the provisions of another act the commissioners of Haywood County were authorized, when the proposition was approved, to issue and sell bonds of Waynesville Township for the purpose of macadamizing, grading and improving the public roads, etc. The road commissioners were given absolute control and management of the public roads of the township and were empowered to expend the funds arising from the sale of bonds for the purpose indicated. This act provided that it should be the duty of the road commissioners to begin improvements at the courthouse on the four main roads in said township. Eeferring to the apparent conflict of authority between the road commissioners and the governing authorities — 554 — of the town, the Court, after remarking that it was not necessary to express an opinion upon the right of the Legislature to confer upon a hoard of commissioners or other agency composed of persons not required to he residents of the town, the power to enter its corporate limits and relocate or open streets therein, said: “Any divided control or authority in regard to them must necessarily result in conflict and confusion. The courts will always endeavor to ascertain the intention of the Legislature by a careful examination of the statute and its several parts, taking into consideration the purpose and scope of the legislation, the present status of the subject-matter, and the rights and interest affected. They will also endeavor to so construe the act that no conflict with existing statutes occur further than is expressly or by necessary implication made necessary. The courts will never bring into question the power of the Legislature until they find no other reasonable way of deciding the question presented. Mardre v. Felton, 61 N. C., 279. The question presented by this record to be first considered is whether the Legislature has by the Act of 1903 conferred upon the defendant commissioners the ‘absolute control’ of any of the streets in the town of Waynesville. ilf such is the effect of the statute, it must, in respect to such streets, repeal by implication section 16 of the charter. Certainly the board of aldermen and the defendant commissioners cannot at the same time have and exercise ‘absolute control’ of the same street.” The conclusion was that the words “shall begin improvements at the courthouse on the four main roads in said township,” could be given effect by requiring the road commissioners to begin their work at the boundary of the corporation leading to the courthouse, thus leaving the city of Waynesville in the exclusive control of its streets. We do not deem it necessary, however, definitely to decide this question or to say whether the repugnant section of the act establishing the road district was abrogated by the repealing clause of the act amending the charter of the city. If it be granted that after the road was taken into the corporate limits the road commission still had power to keep it up, this would not in itself absolve the city from liability for its negligence. Dual liability, joint or primary and secondary, has frequently been approved and enforced. Brown v. Louisburg, 126 N. C., 701; Kinsey v. Kinston, 145 N. C., 106; Seagraves v. Winston, 170 N. C., 618; Hardy v. Construction Co., 174 N. C., 320. The city recognized the road as a public thoroughfare, laid mains in it, put signs on it, and evidently held it out to the public as one of its streets. This was at least evidence of acceptance. 18 C. J., 84 (82). That the old road was changed at the swamp when the concrete bridge was built is immaterial. The authorities of the city had not only constructive, but actual notice of the fallen bridge in ample time to give due warning to people — 555 — baving occasion to cross tbe stream. Tbe superintendent o£ tbe street department “saw a man go into tbe bole in tbe day time, and did not do anything to barricade it.” Even if tbe roads were to be maintained by taxes levied in tbe district and disbursed by tbe road commission tbe public safety nevertheless demanded that tbe governing authorities of tbe city should exercise due care to give timely warning of tbe 'great danger to which travelers were exposed. Willis v. New Bern, 191 N. C., 507. In this, as shown by tbe verdict, tbe city failed and should not now be permitted to escape liability for its negEgence. What we have said disposes of all tbe exceptions, including those to tbe refusal to grant judgment of nonsuit and to tbe instructions given tbe jury. We have given to tbe cases cited from other jurisdictions tbe consideration which tbe importance of tbe appeal demands, but we have discovered no convincing reason for departing from tbe principles announced and adhered to in our own decisions. We find No error.