Spell ex rel. Spell v. Town of Roseboro, 214 N.C. 364 (1938)

Nov. 2, 1938 · Supreme Court of North Carolina

214 N.C. 364

MARIE SPELL, Minor, by Her Next Friend and Father, A. G. SPELL, v. THE TOWN OF ROSEBORO.

(Filed 2 November, 1938.)

Municipal Corporations § 14 — Evidence held insufficient to show that defendant municipality was responsible for alleged defective highway.

Plaintiff instituted this action to recover for injuries sustained in an automobile accident on a highway, alleging that the accident resulted from the negligent failure of defendant municipality to exercise due care to keep the highway in reasonably safe condition. The evidence disclosed that the accident occurred outside the town limits. There was no sufficient evidence to be submitted to the jury that defendant municipality maintained or worked the highway in question or had control or supervision of same. Held: Defendant’s motion for judgment as in case of nonsuit was properly granted.

Appeal by plaintiff from Frizzdle, J., at May Term, 1938, of SampsoN.

Affirmed.

This is an action for actionable negligence, brought by plaintiff against defendant, alleging damage. Tbe plaintiff was seriously injured on 18 January, 1936, by reason of an alleged defective highway. There was no bridge across tbe ditch and tbe driver of tbe automobile, as alleged, using due care, ran into tbe ditch and plaintiff was injured. Tbe defendant denied that it was guilty of negligence, pleaded contributory negligence, and further alleged: “That tbe same is not witbin tbe town limits of Roseboro, has never been maintained, improved or worked, or even recognized as a part or parcel of tbe system of streets of said municipality, and for tbat reason tbe said defendant is not liable to tbe plaintiff in any sum whatever.”

Richard L. Herring for plaintiff.

E. C. Rohinson and W. H. Fisher for defendant.

Per Curiam.

At tbe close of plaintiff’s evidence tbe defendant in tbe court below made a motion for judgment as in case of nonsuit. C. S., 567. Tbe court below granted tbe motion and in tbis we can see no error. Under all tbe evidence we see no duty upon defendant to repair and keep up tbe bridge where tbe injury to plaintiff is alleged to have occurred. It was outside tbe town limits. We think there is no sufficient evidence to be submitted to tbe jury tbat tbe defendant maintained or worked tbe highway in question or bad control or supervision of same. As to tbe liability of municipal corporations having legislative authority outside an incorporated town or city, see Berry v. Durham, 186 N. C., 421; High Point v. Clark, 211 N. C., 607.

Affirmed.