246 N.C. 469
N.C.
1957

Lead Opinion

PARKER, J.

The defendant assigns as error the failure of the court to allow its motion for judgment of nonsuit renewed at the close of all the evidence.

*473The defendant contends that plaintiff should have been nonsuited for the reason that he had not made out a case of actionable negligence against it, but if he has, it, as a municipal corporation, is immune to suit for negligence in the performance of a governmental duty in the operation and maintenanee of Pullen Park.

Defendant’s contention that plaintiff has not made out a case against it of actionable negligence need not detain us. Considering plaintiff’s evidence in the light most favorable to him, it appears that defendant’s employee on the afternoon of 14 May 1953 was operating on very rocky ground in Pullen Park defendant’s old, powerful 24-inch blade Whirlwind mower, dangerous because it had no guard in front, and which, when in operation on such ground, had been throwing rocks from it for some distance, that the defendant had actual knowledge of such facts, or, if not, these facts had existed for a sufficiently long time for it in the exercise of due care to have had knowledge of them, that the defendant should have reasonably foreseen that some injury would likely follow from the operation of this Whirlwind mower to a person using the Park, and that a rock thrown by such mower proximately caused plaintiff’s injuries.

Plaintiff was at least impliedly invited to visit Pullen Park and make use of its facilities. Lovin v. Hamlet, 243 N.C. 399, 90 S.E. 2d 760. This Court said in Brigman v. Construction Co., 192 N.C. 791, 136 S.E. 125, “if a person enters upon the premises of another by reason of express or implied invitation, the owner is bound to exercise ordinary care for his safety.” Plaintiff’s evidence makes out a case of negligence.

The rule that a municipal corporation is immune to suit for negligence in the performance of a governmental function of the municipality, but is liable if it is fulfilling a function of a proprietary character is well settled in this jurisdiction. Hamilton v. Hamlet, 238 N.C. 741, 78 S.E. 2d 770; Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E. 2d 371; Millar v. Wilson, 222 N.C. 340, 23 S.E. 2d 42; Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889; Lowe v. City of Gastonia, 211 N.C. 564, 191 S.E. 7; Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342; Moffitt v. City of Asheville, 103 N.C. 237, 9 S.E. 695.

In Moffitt v. City of Asheville, supra, this Court said:

“The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is sustained. A town acts in the dual capacity of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit. When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the man*474agement of property for their own benefit, or in the exercise of powers, assumed voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will inure to the general benefit of the municipality. (Citing cases). The grading of streets, the cleansing of sewers and keeping in safe condition wharfs, from which the corporation derives a profit, are corporate duties. (Citing cases). On the other hand, where a city or town in exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence. (Citing cases).”

The late cases, as the earlier ones, present conflicting decisions as to the question whether a municipal corporation in the maintenance of parks as places of recreation and resort for the people is discharging a governmental duty or a proprietary duty. The view taken in probably a majority of the jurisdictions in this country is that a municipality in maintaining a public park is engaged in a governmental duty, and therefore in the absence of a statute imposing liability, except in certain instances set forth in 39 Am. Jur., Parks, Squares, and Playgrounds, Sec. 37 et seq., is not liable for injuries resulting from the negligence of its employees. Other jurisdictions are committed to the view that a municipality must exercise ordinary care in maintaining its public parks to make them reasonably safe for persons frequenting and using them, and that it is subject to liability for injuries resulting from its failure to do so, which decisions are based for the most part, but not in every instance, upon the theory that it maintains its parks in a proprietary capacity. The very numerous cases are cited in Anno.: 29 A.L.R. 863 et seq.; 42 A.L.R. 263 et seq.; 99 A.L.R. 687 et seq.; 142 A.L.R. 1342 et seq.; 42 A.L.R. 2d 947; 39 Am. Jur., Parks, Squares, and Playgrounds, Sec. 35; McQuillin’s Municipal Corporations, 3rd Ed., Vol. 18, Sec. 53.112; 63 C.J.S., Municipal Corporations, Sec. 907(b) and (c).

The Courts of different states have taken varying views of the effect of a municipality conducting its parks in such a manner as to derive revenue therefrom in considering the question as to whether the municipality was acting in a governmental or proprietary capacity. Anno.: 29 A.L.R. 874-875; 42 A.L.R. 265; 99 A.L.R. 694-696; 142 A.L.R. 1370-1372; 39 Am. Jur., Parks, Squares and Playgrounds, Sec. 37; McQuil-*475lin’s Municipal Corporations, 3rd Ed., Vol. 18, pp. 451-452; 63 C.J.S., Municipal Corporations, p. 318.

In Carta v. City of Norwalk, 108 Conn. 697, 145 A. 158, the city received a $2,500.00 rental for the lease of a bathing beach, the city lessor reserved the right to inspect the premises at all times. This rental was held prima facie to import such corporate benefit or pecuniary profit as to exclude city from rule granting it immunity from liability for its negligence, and to render erroneous direction of nonsuit in action for negligent injuries resulting in death. The Court said:

“However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence. Hourigan v. Norwich, 77 Conn. 358, 365, 59 A. 487; Oliver v. Worcester, 102 Mass. 489, 502, 3 Am. Rep. 485; Chafor v. Long Beach, 174 Cal. 478, 163 P. 670, L.R.A. 1917E, 685, Ann. Cas. 1918D, 106; 6 McQuillin on Municipal Corporations, p. 5512. ... In the present case the amount of annual rental accruing to the city ($2,500) is such as to remove it, at least prima facie, from the category of such incidental income, and to import such a ‘special corporate benefit or pecuniary profit’ as to exclude the application of the rule of governmental immunity. It may be that a further development of facts may alter the situation, but the plaintiff’s evidence and the required inferences therefrom were sufficient to protect him from a nonsuit on this ground.”

See, also, De Capua v. City of New Haven, 126 Conn. 558, 13 A. 2d 581; Tierney v. Correia, 120 Conn. 140, 180 A. 282.

We have examined the record and briefs in Lowe v. City of Gastonia, supra, in the Clerk’s Office. The complaint alleges, “the defendant, city of Gastonia, maintained and operated in its corporate capacity, the said Golf Course as a business for profit, charging patrons thereon a fee for playing golf on said course.” The city clerk was a witness for plaintiff, and testified in substance: The Golf Course was a part of the Recreational System of the city of Gastonia. It was operated by Neely Price for the city. The city did not make any money off the Golf Course, but lost money every year. Plaintiff’s evidence further showed fees were charged to all who played, except caddies. Plaintiff, when injured, was on the Golf Course as a caddy. Defendant in its answer admitted that it owned the Golf Course, but denied that it operated it as a business for profit. Defendant contended in its brief that plaintiff should have been nonsuited on the ground that there was no evidence of negligence on its part, but if there was, plaintiff was guilty of contributory negligence as a matter of law, and further, that if these contentions *476were untenable, then it was operating the Golf Course as a governmental function, and is immune from suit. Issues of negligence, contributory negligence and damages were submitted to the jury, and answered in plaintiff’s favor. In upholding the trial this Court said: “Defendant’s contention on its appeal to this Court that it is not liable to the plaintiff in the action because it owned and maintained the Golf Course in the exercise of a governmental function, cannot be sustained.”

This Court said in Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325: “When a municipal corporation is acting in its ministerial or corporate character in the management of property for its own benefit, it may become liable for damages caused by the negligence of its agents subject to its control.”

Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722, L.R.A. 1917B 1285, points out the test, with plenary citation of authority, which is generally applied respecting liability in tort against municipalities. The Court very tersely said: “The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability, if it is not, there may be liability.”

In 39 Am. Jur., Parks, Squares, and Playgrounds, sec. 37, it is said: “. . . the rule in many jurisdictions is that if a municipality conducts its parks in such a manner as to derive revenue therefrom, it acts in a proprietary capacity and will be held liable for injuries resulting from defective or dangerous conditions which are allowed to exist. In order to deprive a municipal corporation of the benefit of governmental immunity, however, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality.”

In Hannon v. Waterbury, 106 Conn. 13, 136 A. 876, 57 A.L.R. 402, it was held that the maintenance of a swimming pool and locker rooms in high school was a governmental function of the city, so as to render it immune from liability for injury, though a small charge was made for use of pool partially covering expense of maintenance. See Burton v. Salt Lake City, 69 Utah 186, 253 P. 443, 51 A.L.R. 364, where it was held that the city, in maintaining under statutory authority a bath house and swimming pool for the use of which admission is charged, acts in its private capacity, and is liable for injuries caused by their negligent operation.

In Pickett v. City of Jacksonville, 155 Fla. 439, 20 So. 2d 484, the city owned and operated a pool for swimming in Springfield Park, and charged a fee for the use thereof. Plaintiff’s 12 year old son paid the city to use the pool, put on his bathing suit, and entered the pool. The declaration alleged he drowned due to the city’s negligent failure to provide a sufficient number of attendants and to make reasonable use of *477safety equipment. The Court reversed the sustaining of a demurrer to the declaration.

We are advertent to G.S. 160-156, which is a declaration of State Public Policy as to adequate recreational programs and facilities, and to G.S. 160-163 entitled Petition for establishment of system and levy of tax. We are also advertent to Purser v. Ledbetter, 227 N.C. 1, 40 S.E. 2d 702; Greensboro v. Smith, 239 N.C. 138, 79 S.E. 2d 486; Greensboro v. Smith, 241 N.C. 363, 85 S.E. 2d 292; Lovin v. Hamlet, supra; Atkins v. Durham, 210 N.C. 295, 186 S.E. 330. We are also advertent to James v. Charlotte, 183 N.C. 630, 112 S.E. 423, where it was held that the city charging the actual expense of removing garbage did not change its act from a governmental function to a proprietary function. We are further advertent to our decisions that where a municipality enters the business of selling light and power to its citizens for profit, it is not regarded as being in the exercise of governmental functions, and under proper circumstances may be held to civil liability for its torts. Munick v. Durham, 181 N.C. 188, 106 S.E. 665; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399; Fisher v. New Bern, supra.

Considering plaintiff’s evidence in the light most favorable to him, and disregarding defendant’s evidence which tends to establish another and a different state of facts, or which tends to impeach or contradict his evidence, which we are required to do on the motion for judgment of nonsuit (Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Singletary v. Nixon, 239 N.C. 634, 80 S.E. 2d 676), it is our opinion that the net revenue of $18,531.14 for the fiscal year 1 July 1952 to 30 June 1953 received by the city of Raleigh from the operation of Pullen Park for that period, which was used by the city for the capital maintenance of the park area, building items, paying salaries, buying fuel, etc., (the evidence that the $18,531.14 was spent in the amusement area only is the defendant’s evidence), was such as to remove it, for the purposes of the consideration of a motion for judgment of nonsuit, from the category of incidental income, and to import such a corporate benefit or pecuniary profit or pecuniary advantage to the city of Raleigh as to exclude the application of governmental immunity. The required inferences from plaintiff’s evidence as set forth in the Record are sufficient to protect him from a nonsuit on this ground.

However, the case must be tried anew because of a fatal error in the charge. The defendant’s assignments of error Nos. 30 and 31 are to the effect that, while the court in instructing the jury on the first issue of negligence stated in general terms negligence and proximate cause, it failed and neglected to tell the jury what facts, if found by them, would constitute actionable negligence on defendant’s part, and left the jury unaided to apply the law to the facts relating to this issue.

*478A reading of the charge shows that in respect to the first issue the court elaborately defined negligence and proximate cause in general terms, and in detail stated the contention of the parties, but that it is indisputably clear that the Trial Judge failed to declare and explain the law upon the evidence given in the case. Nowhere in the charge did he instruct the jury what facts it was necessary for them to find to constitute negligence on the part of the defendant. Nowhere in the charge did the Trial Judge instruct the jury as to the circumstances under which the first issue should be answered in the affirmative, and under what circumstances it should be answered in the negative.

The provisions of G.S. 1-180 require that the Trial Judge in his charge to the jury “shall declare and explain the law arising on the evidence in the case,” and unless this mandatory provision of the statute is observed, “there can be no assurance that the verdict represents a finding by the jury under the law and on the evidence presented.” Smith v. Kappas, 219 N.C. 850, 15 S.E. 2d 375.

The chief purpose of a charge is to aid the jury to understand clearly the case, and to arrive at a correct verdict. For this reason, this Court has consistently ruled that G.S. 1-180 imposes upon the Trial Judge the positive duty of declaring and explaining the law arising on the evidence as to all the substantial features of the case. A mere declaration of the law in general terms and a statement of the contentions of the parties, as here, is not sufficient to meet the statutory requirement. Hawkins v. Simpson, 237 N.C. 155, 74 S.E. 2d 331, where 14 of our cases are cited. In Lewis v. Watson, 229 N.C. 20, 47 S.E. 2d 484, this Court said, quoting from Am. Jur.: “The statute requires the judge 'to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.’ 53 Am. Jur., Trial, section 509.”

New trial.





Concurrence Opinion

DenNY, J.,

concurring in result: I have come to the conclusion that in view of our decisions which hold that a municipality may be held liable for its acts of negligence in connection with the construction and maintenance of a golf course, Lowe v. Gastonia, 211 N.C. 564, 191 S.E. 7; an airport, Rhodes v. Asheville, 230 N.C. 134, 52 S.E. 2d 371; streets, Hunt v. High Point, 226 N.C. 74, 36 S.E. 2d 694; a water and light plant, Munick v. Durham, 181 N.C. 188, 106 S.E. 665; wharves, Henderson v. Wilmington, 191 N.C. 269, 132 S.E. 25, etc., that municipalities may be properly held liable for acts of negligence committed by its agents and employees in the operation and maintenance of its parks and playgrounds.

*479A municipality may in certain instances be liable in tort even though it be engaged in a governmental function as well as when it is engaged in a proprietary function, although such governmental function is for a public purpose and may be maintained as a necessary governmental expense.

The construction and maintenance of streets by a municipality is a governmental and not a proprietary function; but since the decision in Bunch v. Edenton, 90 N.C. 431 (1884), it has been uniformly held in this jurisdiction that municipalities may be held liable in tort for failure to maintain their streets in a reasonably safe condition, and they are now required by statute to do so. G.S. 160-54; Hamilton v. Rocky Mount, 199 N.C. 504, 154 S.E. 844; Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807; Whitacre v. Charlotte, 216 N.C. 687, 6 S.E. 2d 558, 126 A.L.R. 438; Hunt v. High Point, supra.

A city may establish and maintain a water plant and operate such plant in its governmental capacity in so far as it uses the water for extinguishing fires, washing streets and the like, Klassette v. Drug Co., 227 N.C. 353, 42 S.E. 2d 411, but it operates such plant in its proprietary capacity when it sells water to its citizens. Even so, the expenditure of money derived from taxes for the construction and maintenance of such plants is held to be for a public purpose and a necessary governmental expense. Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029. Likewise, a municipal light plant is held to be a necessary expense and may be constructed without a vote of the people. Fawcett v. Mt. Airy, supra. A municipality is held to be acting in its governmental capacity in distributing electric current for lighting its streets, Baker v. Lumberton, 239 N.C. 401, 79 S.E. 2d 886, and in the operation and maintenance of its traffic signals, Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889. However, a municipality acts in its proprietary capacity when it establishes an electric distribution system and sells electric current for profit. Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543.

Our Court, in Purser v. Ledbetter, 227 N.C. 1, 40 S.E. 2d 702, speaking through Seawell, J., said: “The Constitution plainly lays upon all agencies concerned with administration, including the courts, the duty to put first things first; not to lose perspective in spending tax money, which is said to be the lifeblood of government. So long as our conception of municipal power is such as to permit those who fight the battles of industry in crowded cities to be regarded as dispensable, and the casualties of accident and disease, directly caused or greatly augmented by congested living, as of no direct concern of municipal government, it is difficult to see how playgrounds and recreational facilities can be regarded as a necessary municipal expense.

“Independently of any question as to the degree of social necessity, we believe that the activities proposed, however qualifying as a public *480purpose for which the municipality may provide by approval of the people, are too remote from the governmental function to be classed as objects of necessary public expense.”

I do not consider the incidental charges made for the use of the facilities at Pullen and Chavis Parks to be determinative on the question of governmental immunity. The total receipts from these sources amounted to only $22,648.99 for the fiscal year ending 30 June 1953, in comparison with the over-all cost of $158,247.95 to operate and maintain all the parks in Raleigh, including its recreational program, for that period. The profit motive it would seem could not have been a substantial factor in the operation and maintenance of the defendant's parks or in the maintenance of its recreational program.

Ordinarily, when a city engaged in a business for profit it is one that will not only pay the expenses in connection with its operation, but will earn substantial income that will go into its treasury for the benefit of all its citizens and taxpayers. In the instant case, the income from Pullen Park, during the period under consideration, lacked $6,593.87 of being sufficient to operate and maintain that particular park. Anno.— Parks- — Liability of Municipality, 99 A.L.R. 694, et seq.

In light of the decisions I have cited, and in view of the fact that the trend in this country is to limit rather than to extend the doctrine of governmental immunity, Municipal Corporation Law by Antieau, Volume 2, section 11.11, page 34; McQuillin’s Municipal Corporations, 3rd Edition, Volume 18, section 53.112, page 453, et seq.; Augustine v. Town o f Brant, 249 N.Y. 198, 163 N.E. 732, I am constrained to support the rule to the effect that municipalities are liable for express acts of negligence of their agents and employees in the operation and maintenance of municipal parks and playgrounds, when such negligence is the proximate cause of injury or damage. This view is supported by many authorities. See 63 C.J.S., Municipal Corporations, section 907(b), page 314; Anno.: — Parks—Liability of Municipality, 142 A.L.R. 1350; McQuillin’s Municipal Corporations, 3rd Edition, Volume 18, section 53.112, page 445, et seq., and cases therein cited.

I believe, however, it would be wise and proper for the General Assembly to limit recovery for injuries sustained in a municipal park or playground to those injuries proximately caused by the negligent acts of the city’s employees, and also to put a reasonable limit on the amount recoverable in such actions. Flynn v. Highway Commission, 244 N.C. 617, 94 S.E. 2d 571.