Pickett v. Carolina & Northwestern Railway
158 S.E. 398
N.C.
1931
Check Treatment
BbogdbN, J.

When the State Highway Commission takes over a public street in an incorporated town for the purpose of constructing and maintaining same as a link in the State highway system, is such town thereby relieved from all liability for negligence to persons using said street ?

As the State Highway Commission is a State agency it is not liable for negligence resulting in personal injury or death. Carpenter v. R. R., 184 N. C., 400. Hence, if the town of Newton is not liable, then the motion for nonsuit as to it should have been granted.

A municipality owes certain specific and nondelegable duties to the public. These duties are summarized in Willis v. New Bern, 191 N. C., 507. There was ample evidence of the dangerous condition of the street at the bridge, and, upon the evidence, the bridge itself was a part of the highway. R. R. v. McArtan, 185 N. C., 201. In the Willis case, *753 supra, tbe Court said: “It is further established by the decisions referred to that a municipal corporation is not an insurer of the safety of its streets, nor is any duty imposed upon it to warrant that the condition of its streets shall at all times be absolutely safe. Neither will the breach of such duties imposed warrant a recovery by the mere showing that a defect existed and that an injury has resulted proximately therefrom. It must be further shown that the governing authorities of the municipality had notice of the defect. This essential notice arises from: (1) Actual notice or knowledge directly imparted to the proper officials of the municipality, (2) implied, constructive or imputed notice. The principle creating and governing, implied, constructive or imputed notice is thus stated in Shearman & Eedfield on the Law of Negligence, 6 ed., Vol. 2, see. 369: ‘Unless some statute requires it, actual notice is not a necessary condition of corporate liability for defect which caused the injury. Under its duty or active vigilance, a municipal corporation is bound to know the condition of his highways, and for practical purposes, the opportunity of knowing must stand for actual knowledge. Hence, where observable defects in a highway have existed for a time so long that they ought to have been observed, notice of them is implied, and is imputed to those whose duty it is to repair.them; in other words, they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence.’ ”

In the case at bar there was sufficient evidence of notice of the condition of said street. The superintendent of public works of defendant town testified that it was a part of his duty to keep the bridges of the town in proper repair and that in the course of his duties he passed over the bridge in controversy sometimes twice or three times a day.

Therefore, we have this situation: A portion of the street of the town was in a defective and dangerous condition, and the town had express notice thereof. Consequently, nothing else appearing, the town would be liable for all injuries received by travelers using said street proximately caused by such defects. But the defendant town, conceding the ordinary rule of law applicable to such a situation, contends that it is absolved from liability because of the fact that the Highway Commission had sole and exclusive control of said street at the time of the death of plaintiff’s intestate. This contention, however, cannot be maintained.

The powers of the State Highway Commission, as originally created, are contained in chapter 2, Public Laws of 1921, and the amendments thereto. C. S., 3846, et seq. In section 10, subsection (g) of the Eoad Act of 1921, now subsection (g), C. S., 3846(j), it is provided that the State Highway Commission shall “assume full and exclusive responsibility for the maintenance of all roads other than streets in towns and cities, forming a part of the State highway system from date of acquir *754 ing said roads.” Obviously, the road act did not relieve municipalities from responsibility for dangerous conditions or defects existing in streets forming a part of the State highway system, certainly after notice. Hence, the trial, judge ruled correctly in declining to enter judgment of nonsuit. Michaux v. Rocky Mount, 193 N. C., 550.

Exception was taken to certain evidence tending to show other accidents at this bridge prior to the time of the death qf plaintiff’s intestate. The record discloses that the conditions existing at the bridge had remained unchanged for several weeks. Hence, the evidence was competent. Conrad v. Shuford, 174 N. C., 719; Perry v. Mfg. Co., 176 N. C., 68; McCord v. Harrison-Wright Co., 198 N. C., 743.

Upon the whole record, it is the opinion of the Court that the case has been correctly tried.

No error.