Kleemeier, J. A., Jr.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 13 | Number 2 Article 172-1-1935Municipal Corporations -- Duty to Keep StreetsSafe by Warnings and Guards -- Proximate CauseJ. A. Kleemeier Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationJ. A. Kleemeier Jr., Municipal Corporations -- Duty to Keep Streets Safe by Warnings and Guards -- Proximate Cause, 13 N.C. L. Rev. 245(1935).Available at: http://scholarship.law.unc.edu/nclr/vol13/iss2/17NOTES AND COMMENTSMunicipal Corporations-Duty to Keep Streets Safe byWarnings and Guards-Proximate Cause.In Haney v. Town of Lincolnton1 plaintiff's intestate was killedwhen a car in which she was a passenger was driven along a citystreet and over an embankment opposite the point at which the streetterminated by intersecting a highway at right angles. The night wasdark, wet, and foggy. Held, by the North Carolina Supreme Courtin reversing judgment for the plaintiff, that the defendant municipal-ity's demurrer to the evidence should have been sustained, as the de-fendant was not negligent in failing to give warning or to place a guardat the street end, and even if negligent its conduct was insulated bythe negligence of the driver of the car, which was the immediate causeof the accident.North Carolina, in accord with most states, recognizes a duty on amunicipality to exercise reasonable care to maintain its streets in areasonably 2 safe condition,3 which includes the provision of properrailings, barriers, or other reasonably necessary signals to warn andguard the traveller against dangerous embankments, excavations, etc.,contiguous to the street.4 Ordinarily the question of the municipal-ity's negligence in failing to provide warnings or guards5 is for the juryto determine from the circumstances.6 In the present case, in view of1207 N. C. 282, 176 S. E. 573 (1934).'A municipality is not the insurer of the absolute safety of its streets. Reutherv. State, 125 Misc. Rep. 773, 214 N. Y. S. 783 (1926) ; Fitzgerald v. Concord, 140N. C. 110,, 52 S. E. 309 (1905); Willis v. New Bern, 191 N. C. 507, 132 S. E.286 (1926).'Russell v. Monroe, 116 N. C. 721, 21 S. E. 550 (1895) (ditch in sidewalk);Fitzgerald v, Concord, 140 N. C. 110, 52 S. E. 309 (1905) (defective culvert instreet) ; Johnson v. Raleigh, 156 N. C. 269, 72 S. E. 368 (1911) (hole in street) ;Bailey v. Winston, 157 N. C. 252, 72 S. E. 966 (1911) (ditch in sidewalk) ; Mi-chaux v. Rocky Mount, 193 N. C. 550, 137 S. E. 663 (1927) (bridge washout).'Bunch v. Edenton, 90 N. C. 431 (1884) (city liable where plaintiff fell intoexcavation near sidewalk); Willis v. New Bern, 191 N. C. 507, 132 S. E. 286(1926) (city liable where plaintiff drove off end of street abruptly terminatingwithout lights or barrier in a river).'In some cases it is not clear whether the court is referring to the duty ofnotification or to the duty of fortification. Briglia v. City of St. Paul, 134 Minn.97, 158 N. W. 794 (1916). Other cases clearly refer to the duty of notification,Prather v. City of Spokane, 29 Wash. 549, 70 Pac. 55 (1902), and others dearlyto the duty of fortification, City of Milledgeville v. Holloway, 32 Ga. App. 734,124 S. E. 802 (1924). City of Phoenix v. Mayfield, 20 P. (2d) 296 (Ariz. 1933)seems to refer to both duties, as does the principal case. Watkin's Adm'r v. Cityof Catlettsburg, 243 Ky. 197, 47 S. W. (2d) 1032 (1932) cites a number of casesin holding that where there is no concealment and the condition is obvious thereis no duty on a city to maintain a barrier strong enough to keep a car from goingover an embankment.'Horton v. McDonald, 105 Conn. 356, 135 Atl. 442 (1926) (plaintiff's carbacked over an embankment twenty feet from middle of the street when shestopped at an intersection to shift gears) ; Bond v. Inhabitants of Billerica, 235Mass. 119, 126 N. E. 281 (1920) (evidence sufficient for jury to find city negli-gent where car went over embankment at curve); Nelson v. City of Duluth,THE NORTH CAROLINA LAW REVIEWthe "semi-dead end" street,7 a sloping embankment opposite a rightangle turn, a dirt shoulder between the embankment and the highway,and no lights, signs, or barriers to warn of the necessity of turning orthe existence of the embankment, the lower court should have beensustained in submitting the case to the jury.8Furthermore, the court held that even assuming that the city wasinactively negligent, yet its conduct was insulated by the interventionof the active negligence of the driver of the car. North Carolina9 haspreviously adhered to the general rule that the municipality is liablewhere two causes concur in producing injury, one of them being aculpable defect in the street, and the other, the active negligence of athird party.1 0 However, the court probably means, instead of there be-ing concurrent causes, that here the driver's negligence was the soleproximate cause of plaintiff's injury. Although approval is given tothe bare statement that the interposition of independent, responsible172 Minn. 76, 214 N. W. 774 (1927) (city liable for not providing warning orguard at a cliff near an S-curve in road) ; Corcoran v. City of New York, 188N. Y. 131, 80 N. E. 660 (1907)' (higher court reversed judgment of nonsuit andordered new trial where car at nighttime crashed through fence at end of streetand over an embankment)."Bean v. City of Portland, 109 Me. 467, 84 Atl. 981 (1912) (plaintiff at nightdrove over an unguarded embankment at the end of a street) ; Corcoran v. City ofNew York, 188 N. Y. 131, 80 N. E. 660 (1907) (car crashed through fence atend of street and over an embankment) ; Willis v. New Bern, 191 N. C. 507, 132S. E. 286 (1926) (city liable where plaintiff drove off the end of street abruptlyterminating without lights or arrier in a river).SComparethe facts in Ivory v. Town of Deer Park, 116 N. Y. 476, 22 N. E.1080 (1889) where there was no ditch or barrier between a curve and an excava-tion within eleven feet of the beaten track. Plaintiff's horses failed to make theturn one night and fell into the excavation. The jury's finding of negligence onthe city's part was not disturbed by the higher court. But cf. Briglia v. City ofSt. Paul, 134 Minn. 97, 158 N. W. 794 (1916), where, as in the principal case, astreet intersected but did not cross another street and there was a bluff oppositethis point of intersection. However, the distinction in the facts is that the carwas driven along the boulevard and then turned into the street for some few feet,and then it began backing across the intersection, sidewalk, and over the bluff.The higher court held that the verdict was properly directed for, the defendant.9 Speas v. City of Grensboro, 204 N. C. 239, 167 S. E. 807 (1930) (city heldliable in an action by a passenger in a car which hit a "silent policeman" negli-gently maintained with lights off at an intersection, even though the driver alsowas liable for his negligence). This rule also was applied where an innocentcause or occurrence combined with the defect in the street. Dillon v. City ofRaleigh, 124 N. C. 184, 32 S. E. 548 (1899) (Plaintiff's horse became frightenedand hit railroad trestle stringers negligently left in the street. Held, the city isliable even though the defect in street combined with running of horse)." Whitlach v. City of Iowa Falls, 199 Iowa 73, 201 N. W. 83 (1924) ; Thomasv. City of Lexington, 150 So. 816 (Miss. 1933) ; King v. Douglas County, 114Neb. 477, 208 N. W. 120 (1928).However, some states in actions arising under a statute making a city liable forinjury by or through a defect in a street allow recovery where the defect combineswith an innocent occurrence in causing injury, Jennes v. City of Norwich, 107Conn. 79, 140 At1. 119 (1927) ; but deny it where the defect combines with thenegligence or fault of a third party, Bartrarm, v. Town of Sharon, 71 Conn. 686,43 AtI. 143 (1899).NOTES AND COMMENTShuman conduct between the injury and the original wrongdoer's neg-ligence insulates the latter, it is doubtful if the court would deny theoft-stated proposition that if the intervening act and resultant injurycould reasonably have been foreseen 'by the defendant he remainsliable." This test of foreseeability, which is a proper test for neg-ligence, is improperly used in many cases as a test for-proximate cause. 12It is true that if the driver's negligence alone would have caused theinjury the city is not liable,13 but if the defendant had performed itsduty of fortifying against danger it seems unreasonable to say that thisaccident would have happened anyway, if the car was being operatedat a speed of only fifteen or twenty miles an hour.Although the inquiry here is almost entirely a factual one the pres-ent decision is to be regretted as a deterrent rather than a spur to actionby the new expense-wary North Carolina municipality towards main-tenance of its streets in a safe condition. If the increasing tide of fatalaccidents 14 is to be checked a higher degree of care must be exercised,both in the operation of vehicles, and in the maintenance of the streetsand highways, which includes all proper warnings and guards at sharpturns and intersections. It is to be hoped that the present financialcondition of most North Carolina municipalities will not lead the courtto lighten the obligation of the municipality, which in terms of the safe-guarding of human life is still far from being too onerous.J. A. KLEEMEIER, JR.Harton v. Telephone Co., 141 N. C. 455, 54 S. E. 299 (1906) (higher courtreversed ruling for defendant and ordered new trial where defendant's defectivetelephone p6le broke and fell in the road, and after being propped up by a travelerfell again killing plaintiff's intestate) ; Hinnant v. Atlantic Coast Line R. Co., 202N. C. 489, 163 S. E. 555 (1932) (recovery against railroad denied where engineerwas negligent in failing to blow whistle, and driver of car in which plaintiff waspassenger was negligent in driving too fast toward a grade crossing on a wet clayroad).I That foreseeability is a test for negligence but not proximate cause is recog-nized in England. In re Polemis & Furness, Withy & Co., Ltd. [1921], 3 K. B.560; Bumrcx, ToRTs (1926) 21. See Gax, RATIoNALE OF PROXImATa CAUSE(1927) 81, 83.North Carolina has applied the test of foreseeability to the problem of cause insome cases. Doggett v. Richmond & Danville R. Co., 78 N. C. 305 (1878) (wherein an action against the railroad for destruction of plaintiff's fence by fire itappeared that plaintiff's fence was three-fourths of a mile from the fence firstignited by sparks from defendant's engine, but was connected with it by a con-tinuous line of fences of other owners. Held, defendant's negligence is remote,and this was not such a probable consequence as should have been reasonablyforeseen) ; Harton v. Telephone Co. 141 N. C. 455, 54 S. E. 299 (1906) ; Herman v.Atlantic Coast Line R. Co., 197 N. C. 718, 150 S. E. 361 (1929) (recovery deniedpassenger in car which struck defendant's train as driver's negligence was thesole proximate cause, being unforeseeable) ; Hinnant v. Atlantic Coast Line R. Co.,202 N. C. 489, 163 S. E. 555 (1932)."City of Douglas v. Burden, 24 Ariz. 95, 206 Pac. 1085 (1922) ; City of Ham-ilton v. Dilley, 30 Ohio App. 558, 166 N. E. 147 (1928) ; Dillon v. Raleigh, 124N. C. 184, 32 S. E. 548 (1899)." See dissenting opinion by Clarkson, J. in the principal case.

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Municipal Corporations -- Duty to Keep Streets Safe by Warnings and Guards -- Proximate Cause

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