Haney v. Town of Lincolnton

Stagy, C. J., after stating the case: It is not debated on brief, nor was it mooted on the hearing, whether plaintiff’s intestate and her companions had embarked upon a joint enterprise, or joint venture, so as to render the contributory negligence of the driver imputable to the other occupants of the car, hence we omit any consideration of this view of the matter. For history, philosophy, definition, and application of the doctrine of joint enterprise, see: Potter v. Florida Motor Lines, 57 Fed. (2d), 313 (which contains a clear exposition of the principles underlying the doctrine); Carlson v. Erie R. Co., 305 Pa., 431, 158 Atl., 163, 80 A. L. R., 308 (with annotation); Campbell v. Campbell, 104 Vt., 468, 162 Atl., 379, 85 A. L. R., 626 (with annotation); Keiswetter v. Rubenstein, 235 Mich., 36, 209 N. W., 154, 48 A. L. R., 1049 (with annotation); Charnock v. Refrigerating Co., 202 N. C., 105, 161 S. E., 707; Butner v. Whitlow, 201 N. C., 749, 161 S. E., 389; Albritton v. Hill, 190 N. C., 429, 130 S. E., 5; Williams v. R. R., 187 N. C., 348, 121 S. E., 608 (concurring opinion); Pusey v. R. R., 181 N. C., 137, 106 S. E., 452; Eubanks v. Kielsmeier, 171 Wash., 484, 18 P. (2d), 48, as reported in 34 N. C. C. A., 388, with full annotation upon the subject. And further, by way of elimination, it is not alleged that there was any defect, excavation, or obstruction, in the street itself, which had been permitted to remain there for an unreasonable length of time, without signals or lights to warn the traveling public, as was the case in Pickett v. Railroad and the Town of Newton, 200 N. C., 750, 158 S. E., 398; nor that the street abruptly terminated in a river without barricade or lights, as was the case in Willis v. New Bern, 191 N. C., 507, 132 S. E., 286. [286] Tbe gravamen of tbe complaint is, tbat tbe elbow or sharp turn in tbe highway created by tbe intersection of Oburcb and Mill streets is immediately adjacent to a dangerous declivity which calls for lights, signs, railing, or barrier to mate it safe for travel in the exercise of ordinary care, and that the failure on the part of the municipality to guard or to warn the public of such danger is negligence, rendering it liable in damages for injuries to travelers which proximately result from a breach of its duty in this respect. Speas v. Greensboro, 204 N. C., 239, 167 S. E., 807. The rule applicable is stated in 13 R. C. L., 421, as follows: “It is well settled that it is the duty of a municipal or gwosi-nrunicipal corporation to erect railings or barriers along the highway at places where they are necessary to make the same safe and convenient for travelers in the use of ordinary care, and that it is liable for injuries to travelers resulting from a breach of its duty in this regard. This is true though the danger arises from structures or excavations outside of the highway, and on the land of adjoining owners, when they are in the general direction of travel upon the highway. Whether or not a railing or harrier is necessary in a given case depends largely upon the circumstances of the particular locality in reference to which the question arises. Among the facts material to be considered are the character and amount of travel, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a railing, whether the danger is concealed or obvious, and the extent of the injury likely to occur therefrom. A number of courts have laid down the rule that the danger must be of an unusual character and one that exposes travelers to unusual hazards, such as bridges, declivities, excavations, steep banks, or deep water.” Our own decisions are accordant with this statement. Willis v. New Bern, supra, and cases there assembled. It is further established by the decisions in this jurisdiction that a municipality is not held to the liability of an insurer of the safety of its streets, but only to the exercise of ordinary care and due diligence to see that they are safe for travel. Alexander v. Statesville, 165 N. C., 527, 81 S. E., 763; Seagraves v. Winston, 170 N. C., 618, 87 S. E., 507; Fitzgerald, v. Concord, 140 N. C., 110, 52 S. E., 309. With respect to the duty of notification or fortification against danger which a municiiiality owes to those using its streets, it has often been said that such duty is to use ordinary care to warn and to protect persons against injury who are themselves exercising ordinary care for their own safety. It is the duty of a municipality to place some guard at dangerous and exposed places, where the happening of accidents from the failure to place guards may be reasonably anticipated. In relation to defects or obstructions in the streets themselves a responsibility may [287] arise somewhat different from a case involving danger outside of the traveled way. In the latter case, the question of negligence becomes one of reasonably anticipated consequences, and the duty is to use such means as may be necessary to prevent those consequences. Watkins’ Admr. v. City of Catlettsburg, 243 Ky., 197, 47 S. W. (2d), 1032. The chief difficulty arises in determining whether, in a particular case, the danger is sufficiently imminent to require guards, signs, or barriers, and naturally each case must be decided upon its own state of facts. No hard and fast rule can be laid down that will apply alike to all conditions. Shea v. Town of Whitman, 197 Mass., 374, 83 N. E., 1096. It was the judgment of those having this particular highway in charge that the situation was- not such as to call for signs or guards, as the intersection had been widened 8 or 10 feet opposite the gulch side of Mill Street, making the width of the hard surface at the point of injury something over 30 feet. In addition to this, there was the dirt shoulder of from 4 to 6 or 8 feet, and then the gradual descent of the embankment. The duty required of the defendant was that of ordinary care. A searching investigation of the record leaves us with the impression that the evidence is wanting in sufficiency to warrant the inference that this duty was breached to the injury of plaintiff’s intestate. Blackwelder v. Concord, 205 N. C., 792, 172 S. E., 392; Briglia v. City of St. Paul, 134 Minn., 97. It further appears that the immediate cause of plaintiff’s intestate’s unfortunate death was the negligence of Guy Barringer, the driver of the car, and not that of the defendant. This doctrine of insulating the conduct of one, even when it amounts to inactive negligence, by the intervention of the active negligence of a responsible third party, has been applied in a number of cases. Baker v. R. R., 205 N. C., 329, 171 S. E., 342; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555; Herman v. R. R., 197 N. C., 718, 150 S. E., 361. Speaking to the subject in his valuable work on Negligence (sec. 134), Mr. Wharton very pertinently says: “Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff ? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.” [288] Tbe same rule announced by Mr. Justice. Strong in R. R. v. Kellogg, U. S.; 469, regarded as sound in principle and workable in practice, bas been quoted with approval in a number of our decisions. He says: “Tbe question always is, "Was there an unbroken connection between the wrongful act and tbe injury — a continuous operation? Did tbe facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between tbe wrong and tbe injury ? It is admitted that tbe rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act amounting to a wanton wrong, is tbe proximate cause of an injury, it must appear that tbe injury was tbe natural and probable consequence of tbe negligence, or wrongful act, and that it ought to have been foreseen in tbe light of attending circumstances.” It follows, therefore, that tbe demurrer to tbe evidence should have been sustained. Reversed.