Morgan v. Town of Tarboro

Brown, J.

Tbe town of Tarboro owns a “Town Common,” or park conveyed to it in 1760 by Joseph .ILowell, lying on tbe east and west side of Main Street. In August, 1915, tbe Colored Firemen’s Tournament was held in Tarboro, and in order to provide seats for tbe spectators along tbe line of march, Joe Ervin erected a grandstand on said town common, open to tbe public at 10 cents admission. This stand was crowded with spectators, plaintiff being one of them. In consequence of tbe negligent construction of tbe stand, or from overcrowding, it fell and injured plaintiff.

We think tbe nonsuit was properly allowed.

1. There is no evidence in tbe record that tbe stand was erected by authority of tbe board of commissioners of tbe town. On 14 June, 1915, tbe board passed tbe following resolution:

“On motion of Commissioner J. D. Jenkins, tbe manager and mayor were appointed a committee with power to act as to an apropriation; also to assist Mr. McCabe and Simmons in getting contributions from tbe different business men in tbe town.”

This is the only reference to the matter in the minutes of the board of commissioners, and the only authority delegated by the board. Later, Mr. Jacocks, the town manager, together with Paul McCabe, with whom the committee appointed by the board was to serve, gave the defendant Joe Ervin permission to erect in the aforesaid town common, parallel with Main Street, a grandstand for the accommodation of those who should attend the tournament, wbicb was to be held on the Main Street of said town. Tbe committee, or some of them, told Erwin where to erect the grandstand and advised him that be should not charge more than 10 cents admission. Tbe town was to receive no part of the proceeds.

It must be noted that tbe public street was not obstructed in any way. Tbe grandstand was erected on tbe common and solely for tbe accommodation of spectators tbat tbey might more comfortably view tbe tournament. Tbe town authorities did not authorize its erection and received no part of the proceeds of admission. On tbe contrary, an ordinance of tbe town was in force at tbe time forbidding tbe use of tbe common for shows, exhibitions, or entertainments of any kind.

2. But admitting tbat tbe town did authorize Ervin to erect tbe stand for tbe convenience of spectators on such gala occasion, under tbe evidence in this record, it would not be liable.

Tbe principle of law is well settled tbat if tbe act which tbe municipality licenses a person to commit within its limits is not unlawful in itself or inherently dangerous, so as to become a public nuisance, and an injury is occasioned merely on consequence of tbe manner in which tbe act is performed, then tbe municipality is not liable. 5 Thompson on Negligence, 5805, and cases cited.

Tbe erection of temporary seats along tbe city streets on public occasions is not unusual. It is allowed for tbe convenience of tbe public, and does not in tbe least partake of tbe character of a nuisance.

Tbe plaintiff having submitted to a voluntary nonsuit as to defendant Ervin, tbe action was properly dismissed.

Affirmed.