Cooper v. Town of Southern Pines , 58 N.C. App. 170 ( 1982 )

293 S.E.2d 235 (1982)

Karen Stutts COOPER
v.
TOWN OF SOUTHERN PINES and Seaboard Coast Line Railroad Company.

No. 8120SC887.

Court of Appeals of North Carolina.

July 6, 1982.

Pollock, Fullenwider, Cunningham & Patterson by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Young, Moore, Henderson & Alvis by John E. Aldridge, Jr., Raleigh, and Brown, Holshouser & Pate by W. Lamont Brown, Southern Pines, for defendants-appellees.

VAUGHN, Judge.

There are two issues on appeal. (1) Did plaintiff present sufficient evidence to submit the question of the Town's negligence to the jury? (2) If so, did plaintiff's evidence establish contributory negligence as a matter of law? For the following reasons, we conclude that the court improperly entered a directed verdict in favor of the Town.

To establish a prima facie case of negligence, plaintiff must establish that defendant owed her a duty of care, that defendant breached that duty, and that defendant's breach was the actual and proximate cause of her injury. Burr v. Everhart, 246 N.C. 327, 98 S.E.2d 327 (1957). A directed verdict on the issue of negligence is improper unless the evidence, when viewed in the light most favorable to plaintiff, fails to show one of these elements.

In the present action, plaintiff alleges that G.S. 160A-298(c) creates a duty of care which the Town breached. We disagree.

G.S. 160A-298(c) authorizes a city to require "the installation, construction, erection, reconstruction, and improvement of warning signs, gates, lights, and other safety devices at grade crossings...." The exercise of control over railroad crossings has also been held to be within a municipality's inherent police power. See R.R. Co. v. City of Winston-Salem, 275 N.C. 465, 168 S.E.2d 396 (1969); Winston-Salem v. R.R., 248 N.C. 637, 105 S.E.2d 37 (1958).

The fact that a city has the authority to make certain decisions, however, does not mean that the city is under an obligation to do so. The words "authority" and "power" are not synonymous with the word "duty." When the legislature intended to create a duty in Chapter 160A, it did so expressly. See G.S. 160A-296.

G.S. 160A-298 allows a city to exercise its discretion in requiring improvements at railroad crossings. There is no mandate of action. Courts will not interfere with discretionary powers conferred on a municipality for the public welfare unless the exercise (or nonexercise) of those powers is so clearly unreasonable as to constitute an abuse of discretion. Riddle v. Ledbetter, 216 N.C. 491, 493-94, 5 S.E.2d 542, 544 (1939).

In the instant case, we find no evidence of an abuse of discretion. We, therefore, hold, as a matter of law, that the Town was not negligent in failing to require the installation of automatic signals at the New York Avenue crossing. In so holding, we necessarily overrule plaintiff's Assignments of Error Nos. 2 and 3. Those exceptions pertain to the admissibility of exhibits relevant solely to plaintiff's claims under G.S. 160A-298.

Plaintiff claims that the Town was also negligent in allowing shrubbery to obstruct a motorist's view of the tracks in violation of G.S. 160A-296(2). Unlike G.S. 160A-298, G.S. 160A-296(2) does create an affirmative duty of care: A city shall have "[t]he duty to keep the public streets, sidewalks, alleys, and bridges ... free from unnecessary obstructions." An obstruction can be anything, including vegetation, which renders the public passageway less convenient or safe for use.

In the present case, plaintiff presented evidence that the Town had improved the area bordering both sides of the tracks. There were evergreen trees, large magnolia trees, many azaleas, dogwood trees, and oak trees. The Town was responsible for the pruning of those plants. Plaintiff testified that when she stopped at the crossing, her view to the right was not clear: "Bushes and shrubs and stuff—most of those were in the way. The bushes appeared to be full and green and about medium height."

From such evidence, a jury could reasonably infer that the Town failed to exercise ordinary care in maintaining shrubbery along a public street and could foresee that its omission would cause an obstruction interfering with public safety. We conclude that the court erred in entering a directed verdict in defendant's favor on the issue of negligence.

Defendant argues that the court nevertheless properly directed a verdict in its favor because plaintiff's evidence established contributory negligence as a matter of law. We disagree.

Contributory negligence is a jury question unless the evidence is so clear that no other conclusion is possible. R.R. v. Trucking Co., 238 N.C. 422, 78 S.E.2d 159 (1953); Ridge v. Grimes, 53 N.C.App. 619, 281 S.E.2d 448 (1981). Here, plaintiff stopped before the tracks. She looked in both directions but did not see a train. Her view to the right was obstructed by shrubbery and the angle of the tracks. Once she proceeded across the first set of tracks, she never looked back to the right. The train engineer saw plaintiff's car at the easternmost track when he was 75 feet from the crossing.

Plaintiff's evidence supports conflicting conclusions. There were nineteen feet between the two sets of tracks. A jury could conclude that had plaintiff looked back to the right after crossing the first track, she should have seen the train in time to avoid the collision. A jury could also find, however, that with her view obstructed, plaintiff used her faculties the best she could to see if there was danger and that negligence should not be imputed to her. Where conflicting inferences can be drawn from the evidence, there is no contributory negligence as a matter of law. See Coltrain v. R.R., 216 N.C. 263, 4 S.E.2d 853 (1939); Loflin v. R.R., 210 N.C. 404, 186 S.E. 493 (1936).

We conclude that plaintiff presented evidence that would support a finding that Town's negligence was a proximate cause of her injuries. The court erred in directing a verdict in defendant's favor. The order is reversed.

Reversed.

ROBERT M. MARTIN and ARNOLD, JJ., concur.