Baker v. City of Lumberton , 239 N.C. 401 ( 1954 )

79 S.E.2d 886 (1954) 239 N.C. 401

BAKER
v.
CITY OF LUMBERTON.

No. 669.

Supreme Court of North Carolina.

January 29, 1954.

R. L. Campbell, Rowland, F. D. Hackett, Lumberton, for plaintiff appellee.

McLean & Stacy, Lumberton, for defendant appellant.

WINBORNE, Justice.

The only assignment of error is based upon exception to denial of defendant's motions, aptly made, for judgment as of nonsuit.

I. It is contended, and rightly so, that the evidence shows affirmatively that the death of plaintiff's intestate resulted from contact with a wire used by the city in transmitting electricity for street lighting purposes only, a governmental function, in the performance of which the city is not liable for tortious acts of its officers and agents. Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889; Beach v. Town of Tarboro, 225 N.C. 26, 33 S.E.2d 64; Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915; Hamilton v. Town of Hamlet, 238 N.C. 741, 78 S.E.2d 770.

The decisions of this Court uniformly hold that, in the absence of some statute which subjects them to liability therefor, when cities acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by their charters or by statute, and when discharging a duty imposed solely for the public benefit, they are not liable for the tortious acts of their officers or agents. See Hodges v. City of Charlotte, supra; also Hamilton v. Town of Hamlet, supra, and numerous cases there cited.

And it has been held by this Court that the installing and maintaining of traffic light system in and by a city is in the exercise of a discretionary governmental function. See Hodges v. City of Charlotte, supra; Beach v. Town of Tarboro, supra; Alford v. Washington, supra; Hamilton v. Town of Hamlet, supra.

II. If it be conceded that the city of Lumberton were negligent in any respect alleged in the complaint, it affirmatively appears from the evidence offered by plaintiff that the injury to and death of the intestate of plaintiff was "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person". See Smith v. Sink, 211 N.C. 725, 192 S.E. 108; also Alford v. Washington, supra, and cases there cited.

The fallen wire was dead until it was picked up by Prentiss Gaddy and moved away from the house to the side of the light pole. So far as it appears from the evidence, there would have been no injury to anyone but for this intervening act which insulated any negligence on the part of defendant. See Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Alford v. Washington, supra.

III. Also, if it be conceded that the city of Lumberton were negligent in any of the respects alleged in the complaint, it affirmatively appears from the evidence offered by plaintiff that the intestate of plaintiff was negligent in approaching the wire—when he saw, and was warned, that it had become alive with electricity,— thereby he contributed proximately to his injury and death. The law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Mintz v. Town of Murphy, supra.

Hence this Court is constrained to hold that on any, and all of the grounds so stated, plaintiff has failed to make out a case of liability against defendant city of Lumberton. Therefore the judgment below is

Reversed.