Stancill v. City of Washington , 29 N.C. App. 707 ( 1976 )

225 S.E.2d 834 (1976) 29 N.C. App. 707

Daisy Arlene STANCILL
v.
CITY OF WASHINGTON and Jack H. Webb.

No. 762SC118.

Court of Appeals of North Carolina.

June 16, 1976.

Milton S. Brown and LeRoy Scott, Washington, for plaintiff appellant.

Rodman, Rodman & Holscher by Edward N. Rodman and David C. Francisco, Washington, for defendant appellees.

HEDRICK, Judge.

The only assignment of error brought forward and argued on appeal is whether the trial court erred in allowing defendants' motion for summary judgment and in dismissing the action. A party moving for summary judgment must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). Summary judgment is appropriate in a negligence case only under exceptional circumstances, since, ordinarily, the rule of the prudent man should be applied by the jury under appropriate instructions from the court. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). It is only where "a motion for summary judgment is supported by evidentiary matter showing a total lack of negligence on movant's part and no evidence is offered in opposition thereto" that the defendant's motion for summary judgment should be allowed. Caldwell v. Deese, 288 N.C. 375, 381, 218 S.E.2d 379, 383 (1975).

In support of their motion, defendants, through their verified answer and requests for admissions, offered evidence to show that the Department of Transportation by statute (G.S. 136-66.1) has the jurisdiction and the responsibility to maintain Fifteenth Street since it is a part of the State highway system. The stop sign was located in the right-of-way of Fifteenth Street, and the city has no duty and can incur no liability (G.S. 160A-297(a)) for failing to maintain the right-of-way of a street within the municipality which is a part of the State highway system. Since plaintiff does not deny that the stop sign was erected by the State and admits that it is located within the State's right-of-way, defendants argue that as a matter of law they cannot be negligent for failing to maintain the stop sign when they had no duty to maintain it.

Plaintiff, through the affidavit of Milton S. Brown, Jr., offered evidence to show that the overhanging limbs and foliage which obscured the stop sign on 14 July 1975 were located over the western right-of-way of Respass Street. In addition, they offered evidence to show that the city through its employees cut back limbs and foliage along the western right-of-way of Respass Street on 18 July 1974. Since defendants admit that Respass Street is part of the city's street system, plaintiff contends on appeal that G.S. 160A-296 is applicable to this case. It provides in pertinent part that:

"A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. General authority and control includes but is not limited to:

* * * * * *

(2) The duty to keep the public streets, sidewalks, alleys, and bridges open for travel and free from unnecessary obstructions;

* * * * * *"

G.S. 160A-296 imposes upon the municipality the positive duty to maintain its streets in a reasonably safe condition for travel. Hunt v. High Point, 226 N.C. 74, 36 S.E.2d 694 (1946); Mosseller v. Asheville, 267 N.C. 104, 147 S.E.2d 558 (1966). Plaintiff's affidavit shows that there exists a genuine issue of material fact as to whether the city was in fact negligent in failing to inspect for and clear away overhanging foliage which obscured the stop sign and whether such failure was the proximate cause of plaintiff's injury. While the city is not an insurer of the condition of its streets, G.S. 160A-296 does subject the defendant to liability for the negligent failure to maintain its streets in a reasonably safe condition. Mosseller v. Asheville, supra. The trial court's judgment granting summary judgment for the defendant City of Washington must be reversed.

With regard to the defendant Jack H. Webb, the caption of the case indicates that he has been sued individually and not in his official capacity as City Manager of the City of Washington. We have examined the complaint and plaintiff's evidence offered in reply to defendants' motion for summary judgment and we can find no allegation of any negligence on the part of Jack Webb other than allegations of negligence with respect to him while serving in his official capacity with the City of Washington. Accordingly, summary judgment with regard to defendant Jack H. Webb is affirmed.

The result is: summary judgment for defendant Jack H. Webb is affirmed; summary judgment for defendant City of Washington is reversed.

Affirmed in part; Reversed in part.

PARKER and ARNOLD, JJ., concur.