Taylor v. Town of Hertford

117 S.E.2d 469 (1960)

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.

December 14, 1960.

*471 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, G.S. § 136-41.1, standing alone would be sufficient to sustain the nonsuit.

And, furthermore, G.S. § 160-54 declares that: "The board of commissioners shall provide for keeping in proper repair the *472 streets and bridges in the town, in the manner and to the extent they may deem best * * *." And by Session Laws of 1949, Chap. 862, the General Assembly amended this statute, § 160-54, by adding there: "Provided, however, so long as the maintenance of any streets and/or bridges within the corporate limits of any town be taken over by the State Highway and Public Works Commission, such town shall not be responsible for the maintenance thereof and shall not be liable for injuries to persons or property resulting from the failure to maintain such streets and bridges."

Thus the Town of Hertford calls attention to the specific language of non-liability on its part in respect to the falling of the elm tree in the stress of gusty winds.

The Town of Hertford, the appellee, points out that the case of Pickett v. Carolina & N. W. Ry., 200 N.C. 750, 158 S.E. 398, decided in 1931, is not authority against defendant on this appeal, for that the 1949 amendment to G.S. § 160-54 was not then in force and effect.

Now, adverting to another applicable statute in support of appellee's position of non-liability, G.S. § 136-93, in pertinent part it reads: "* * * No State road or State highway, other than streets not maintained by the State Highway Commission in cities and towns, shall be dug up for laying or placing pipes, conduits, sewers, wires, railways, or other objects, and no tree or shrub in or on any State road or State highway shall be planted, trimmed, or removed, and no obstruction placed thereon, without a written permit as hereinbefore provided for, and then only in accordance with the regulations of said Commission or its duly authorized officers or employees; and the work shall be under the supervision and to the satisfaction of the Commission or its officers or employees, and the entire expense of replacing the highway in as good condition as before shall be paid by the persons, firms, or corporations to whom the permit is given, or by whom the work is done."

Therefore, taking the evidence adduced upon the trial in Superior Court in the light most favorable to plaintiff, and giving to plaintiff the benefit of reasonable inferences to be drawn therefrom, the Court holds, applying the statutes, that plaintiff fails to make out a case, and the judgment of nonsuit below is

Affirmed.