There are two issues on appeal. (1) Did plaintiff present sufficient evidence to submit the question оf the Town’s negligence to the jury? (2) If so, did plaintiffs evidence establish contributory negligence as a matter of law? For the following reasons, we conclude that the court improperly entered а 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,
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, construсtion, erection, reconstruction, and improvement of warning signs, gates, lights, and other safety devicеs at grade crossings. . . .” The exercise of control over railroad crossings has also been hеld to be within a municipality’s inherent police power.
See
R.R.
Co. v. City of Winston-Salem,
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 welfаre unless the exercise (or nonexercise) of those powers is so clearly unreasonаble as to constitute an abuse of discretion.
Riddle v. Ledbetter,
*174 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 cоnvenient 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 evidеnce 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.,
Plaintiff’s evidence supports conflicting сonclusions. 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 facultiеs the best she could to see if there was danger and that negligence should not be imputed to her. Whеre conflicting inferences can be drawn from the evidence, there is no contributory negligence as a matter of law.
See Coltrain v. R.R.,
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.