Mosseller v. City of Asheville ( 1966 )

147 S.E.2d 558 (1966) 267 N.C. 104

Norene Allen MOSSELLER
v.
CITY OF ASHEVILLE.

No. 114.

Supreme Court of North Carolina.

April 20, 1966.

Williams, Williams & Morris, Asheville, for plaintiff appellant.

Van Winkle, Walton, Buck & Wall, by O. E. Starnes, Jr., Asheville, for defendant appellee.

LAKE, Justice.

The judgment of nonsuit must be sustained unless the evidence offered by the plaintiff, considered in the light most favorable to her, is sufficient to show negligence by the city which was the proximate cause of the plaintiff's fall and injury. The burden is upon the plaintiff to establish such negligence and causation. Walker v. Town of Wilson, 222 N.C. 66, 21 S.E.2d 817.

When a municipal corporation operates a system of waterworks for the sale by it of water for private consumption and use, it is acting in its proprietary or corporate capacity and is liable for injury or damage resulting from such operation to the same extent and upon the same basis as a privately owned water company would be. Faw v. North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Candler v. Asheville, 247 N.C. 398, 101 S.E.2d 470; Woodie v. North Wilkesboro, 159 N.C. 353, 74 S.E. 924; McQuillin, Municipal Corporations, 3rd ed., § 53.104; 56 Am.Jur., Waterworks, § 38. It is not an insurer against injury or damage by water leaking from such system. It is liable only if the escape of the water was due to its negligence either as to the initial break in the water line or in its failure to repair or cut off the line so as to stop the flow. 94 C.J.S. Waters, § 309. The reasonable care which is required of the city when engaged in such operation, like that required of a privately owned water company, includes the exercise of ordinary diligence to discover breaks in its lines and to correct such defects of which it has notice, or which it could have discovered by the exercise of reasonable inspection. Since the record is silent as to what caused the leak to develop in the water line, the plaintiff, in order to recover from the city as the operator of a system of waterworks, must show that the city was negligent in its failure to take steps to stop the flow of water after it had actual or constructive notice of the leak.

As an alternative theory upon which to recover for her injury, the plaintiff asserts the failure of the city to keep its public street in a safe condition. While the city is not an insurer of the safety of one who uses its streets and sidewalks, it is under a duty to use due care to keep its streets and sidewalks in a reasonably safe condition for the ordinary use thereof. G.S. § 160-54. The controlling principles of law are thus stated by Parker, J., now C. J., in Smith v. City of Hickory, 252 N.C. 316, 113 S.E.2d 557:

"The governing authorities of a town or city have the duty imposed upon them by law of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who use them in a proper manner. Liability arises only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect in the street or sidewalk and the injury: he must also show that the officers of the town or city knew, or by ordinary diligence, might have known of the defect, and the character of the defect was such that injuries to travellers using its street or sidewalk in a proper manner might reasonably be foreseen. Actual notice is not required. Notice of a dangreous condition in a street or sidewalk will be imputed to the town or city, if its officers should have discovered it in the exercise of due care."

To the same effect see: Faw v. North Wilkesboro, supra; Gettys v. Town of Marion, 218 N.C. 266, 10 S.E.2d 799; Bailey v. Town of Winston, 157 N.C. 252, 72 S.E. 966; Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309.

It will be observed that in this case the water did not escape from the city's property and invade the property of another. It flowed from the break in the pipe, which was under the street, up to the surface of the street and thence down the gutter line of the street, eventually passing, presumably, into the city's system of storm sewers. Thus, there is no question here of trespass or of property damage. The evidence indicates that one observing the flow of water would have no reason to anticipate damage to any property thereby.

The plaintiff must recover, if at all, on the theory that the city was negligent in failing to stop the flow of water down the gutter line of its street because it should have foreseen danger of personal injury to a user of the street if the flow continued. This is true whether she rests her case upon the duty of the city as the operator of a water system or upon the duty of the city to keep its streets in a reasonably safe condition. In order to hold the city liable, it must appear that the city knew or should have discovered the water was so running upon the street; that it should have foreseen danger of personal injury to one using the street if the flow of water was not checked; and that it failed to act to stop the flow within a reasonable time.

It is the duty of the city to exercise a reasonable and continuing supervision over its streets in order that it may know their condition and it is held to have knowledge of a defect which such inspection would have disclosed to it. Faw v. North Wilkesboro, supra; Bailey v. Town of Winston, supra. However, the city's duty to inspect and discover defects in its streets does not go beyond the duty to exercise reasonable care in that respect. Jones v. City of Greensboro, 124 N.C. 310, 32 S.E. 675. No arbitrary rule can be laid down with reference to how frequently the city must inspect its streets. Revis v. City of Raleigh, 150 N.C. 348, 63 S.E. 1049.

The evidence indicates that the flow of water along the side of Furman Court was not large in volume. If an officer or employee of the city had passed the end of this one-block, dead-end street and had observed the flow of water along the line of the gutter, he might easily have failed to conclude therefrom that it was anything more than a temporary condition, or that its point of origin was a defect in the system of waterworks. The evidence is that the water so ran down this one-block street for approximately two weeks. The evidence is not sufficient to show constructive notice to the city of the leak in its water main.

There is, however, evidence of actual notice to the superintendent of the Water Department. In response to a complaint, he went to Furman Court and found the water main was leaking, but this was not until the day before the plaintiff fell. The evidence does not show at what hour of the day his visit to the scene occurred. There is nothing in the evidence to indicate that he did not go to Furman Court promptly upon receipt of the complaint. The leak was repaired on the third day after he went there and saw the leak, the plaintiff having fallen in the meantime. His testimony, on adverse examination, was that the leak was not what he considered a "big leak." The plaintiff's husband testified that on the day when the superintendent observed the leak there was "no indication of bad weather."

It is not every defect in a street or sidewalk which will render a city liable to a person who falls as a result thereof. Trivial defects, which are not naturally dangerous, will not make the city liable for injuries occasioned thereby. Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424. To recover, the plaintiff must not only show that the city knew of the defect but must go further and show that "the character of the defect was such that injuries to travellers using its street or sidewalk in a proper manner might reasonably be foreseen." Smith v. City of Hickory, supra; Fitzgerald v. City of Concord, supra; Revis v. City of Raleigh, supra.

In Oliver v. City of Raleigh, 212 N.C. 465, 193 S.E. 853, Barnhill, J., later C. J., speaking for the Court, said:

"All portions of a public street from side to side and end to end are for the public use in the appropriate and proper method, but no greater duty is cast upon the city than that it shall maintain the respective portions of its streets in a reasonably safe condition for the purposes for which such portions of the streets are respectively devoted. [Citations omitted]. A municipality is only required to maintain the respective portions of the streets in reasonably safe condition for the purposes to which they are respectively devoted; thus, the driveway must be kept in such a state of repair as to be reasonably safe for horses and vehicles, but not necessarily for pedestrians. [Citations omitted].

"In each case the way is to be pronounced sufficient or insufficient as it is, or is not, reasonably safe for the ordinary purposes of travel under the particular circumstances which exist in connection with that particular case."

When the superintendent of the Water Department actually observed this water flowing from the leak in the water main, there being no evidence of actual notice to the city prior to that day, he observed a flow down the gutter line of the street which was "not big." The water was not escaping from the street. So long as the flow of water continued as it then was, it could not be reasonably foreseen that it would cause injury to a person using the street in the normal manner. There was then no indication of "bad weather." While it might have been foreseen that water trickling along a paved street in Asheville over night, during the first week of March, might freeze, this, in itself, would not make the street so hazardous as to impose upon the city the duty to call out its repair crew and correct the leak immediately. It was the fall of a thin covering of dry, fluffy snow upon the thin sheet of ice which made the surface of the street at that point exceedingly slippery and caused the plaintiff's footwear to be less effective than it otherwise would have been in preventing her from slipping.

Assuming that the plaintiff slipped and fell upon the street, without any fault of her own, this does not, of itself, impose liability upon the city, either as the operator of the leaky water main or as the custodian of the street. There was nothing in the situation shown to have confronted the superintendent of the Water Department, when he stood at the scene of the leak on the preceding day, which made it unreasonable for him to defer sending the repair crew to this particular leak.

In Carl v. City of New Haven, 93 Conn. 622, 107 A. 502, 13 A.L.R. 1, the plaintiff fell upon a sidewalk coated with ice, which, itself, was covered with new fallen snow. The Supreme Court of Errors of Connecticut said:

"The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent of liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. `Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.' [Citations omitted]. Were it otherwise and municipalities were charged with notice of defects which the future should develop upon the strength alone of their knowledge of such conditions as were calculated to produce them, the expansion of municipality liability for highway defects would be enormous, the burden of repair and remedy cast upon them would be vastly enlarged, and a wide field of uncertainty opened up in which triers might wander comparatively unrestrained in speculations as to causes and anticipated results."

The evidence, viewed in the light most favorable to the plaintiff, does not show negligence by the city in deferring the repair of the leak in the water main from the day before the plaintiff's injury to a time shortly thereafter. Consequently, the judgment of nonsuit was proper.

Affirmed.

MOORE, J., not sitting.