Shapiro v. Toyota Motor Co. Ltd. , 38 N.C. App. 658 ( 1978 )

248 S.E.2d 868 (1978) 38 N.C. App. 658

Donald SHAPIRO and Harold Shapiro
v.
TOYOTA MOTOR COMPANY LTD., Toyota Motor Sales, USA, Inc., Toyota Motor Distributors, Inc., North Carolina Telephone Company, and the Town of Matthews.

No. 7826SC118.

Court of Appeals of North Carolina.

November 21, 1978.

Helms, Mullis & Johnston by N. K. Dickerson, III, and Robert B. Cordle, Charlotte, and Karsman, Brooks, Doremus by Stanley M. Karsman, Savannah, Ga., for plaintiffs.

Golding, Crews, Meekins, Gordon & Gray by Marvin K. Gray and Harvey L. Cosper Jr., and Robert L. Chapman, Charlotte, for defendant North Carolina Telephone Co.

Wade & Carmichael by R. C. Carmichael, Jr., Charlotte, for defendant Town of Matthews.

ROBERT M. MARTIN, Judge.

The question for decision is whether the trial court erred in entering summary judgment in favor of defendants Town of Matthews and North Carolina Telephone Company.

Rendition of summary judgment is, by the rule itself, conditioned upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Stoltz v. Hospital Authority, Inc., 38 N.C.App. 103, 247 S.E.2d 280 (1978).

Issues of negligence are ordinarily not susceptible of summary adjudication either for or against claimant, but should be resolved by trial in the ordinary manner. It is only in exceptional negligence cases that summary judgment is appropriate. This is because the rule of the prudent man (or other applicable standard of care) must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).

While plaintiffs recognize that G.S. 136-66.1 and 160A-297(a) absolve the Town of responsibility for maintaining and improving RPR 1009, nevertheless, they contend the Town and Board of Transportation share a dual responsibility for erecting appropriate highway signs pursuant to G.S. 136-30 and 31. Hence, they argue that the Town was negligent for failing to post adequate warning signs, for failing to light the intersection adequately, and for allowing the pole to be placed where it was. We disagree. Under the cited statutes together with G.S. 136-93, when a city street becomes a part of the State highway system, the Board of Transportation is responsible for its maintenance thereafter which includes the control of all signs and structures within the right-of-way. Therefore, in the absence of any control over a state highway within its border, a municipality has no liability for injuries resulting from a dangerous condition of such street unless it created or increased such condition. That authority precedes responsibility, or that control is a prerequisite of liability, is a well recognized principle of law as well as of ethics. Taylor v. Hartford, 253 N.C. 541, 117 S.E.2d 469 (1960). The court correctly allowed summary judgment in favor of defendant Town of Matthews.

The action of the court in granting summary judgment in favor of defendant North Carolina Telephone Company presents the question as to whether the placing and maintenance of its telephone pole in the Town of Matthews with the Town's permission, in the arc of a curve in the right-of-way of RPR 1009 approximately twelve and one-half inches (12½") from the curb line could be held to be negligent of itself. If there was a total lack of negligence on movant's part, no issue is raised for the jury to consider.

G.S. 62-180 provides that operators of telephone lines have the right to construct and maintain lines along a public highway but may not obstruct or hinder unreasonably the usual travel on such highway.

In Wood v. Carolina Telephone & Telegraph Co., 228 N.C. 605, 46 S.E.2d 717 (1948), the minor plaintiff sought to recover damages for personal injury sustained when his arm was caught between the automobile he was driving and a telephone pole maintained by the defendant telephone company and located six inches (6") beyond the curb of the street. Plaintiff's automobile never crossed the curb or left the traveled portion of the street. Plaintiff asserted that defendant's maintenance of the pole in such proximity to the roadway constituted a hazard to persons traveling on the street.

In affirming the trial court's judgment sustaining defendant's demurrer, the Court, through Justice Barnhill, held that defendant's maintenance of the pole located six inches (6") from the paved surface of the highway did not obstruct the free use of the vehicular lane of traffic or constitute a hazard to motorists using the highway in a proper manner.

Although the pole involved in the Wood case was located off the left side of the street, the Supreme Court stated the following principles which are clearly applicable in the case at bar:

"Surely all portions of a public way, from side to side and end to end, are for public use in the appropriate and proper method. (Citation omitted.) But this does not mean that a motorist is at liberty to drive his vehicle over and across the sidewalk or the grass plot between the sidewalk and street or to complain that objects there maintained obstruct his free use of the vehicular lane of travel.

. . . The maintenance of an object in the public way in no event constitutes an act of negligence unless it renders the way unsafe for the purposes to which such portion of the street is devoted. (Citations omitted.)

In almost every hamlet, town and city in the State the space between the sidewalk proper and the street is used for the location and maintenance of telephone and telegraph poles, traffic signs, fire hydrants, water meters, and similar structures. It is a matter of common knowledge that this space is so used. (Citation omitted.) In no sense do such structures constitute a hazard to or in any wise impede the free use of the vehicular lane of travel.

In effect, the Court held that the maintenance of a utility pole along a public highway does not constitute an act of negligence unless the pole constitutes a hazard to motorists using the portion of the highway designated and intended for vehicular travel in a proper manner.

The Toyota failed to negotiate the curve and crashed into the telephone pole located twelve and one-half inches (12½") beyond the elevated curbing forming the southern edge of the outside eastbound lane of travel for vehicles approaching downtown Matthews from the west. Obviously, the pole would not have been struck had the Toyota been operated in a proper manner. Thus, the maintenance of the pole did not constitute an act of negligence.

Viewing the evidence offered by plaintiffs in the light most favorable to them and drawing all inferences of fact against defendants, we conclude that it established a total lack of negligence on defendants' part and entitled it to a judgment as a matter of law.

The order of the trial judge entering summary judgment in favor of North Carolina Telephone Company is affirmed; the order of the trial judge entering summary judgment in favor of the Town of Matthews is affirmed.

VAUGHN and MITCHELL, JJ., concur.