BARNHILL, J., concurring.
CLARKSON, J., dissenting. *Page 738 Civil action for recovery of damages resulting from alleged actionable negligence.
Plaintiff alleges that on the morning of 18 December, 1934, while she was walking across E. Trade Street in the city of Charlotte, immediately west of the intersection of that street with Myers Street, she was stricken and injured by an automobile truck of the city of Charlotte negligently operated, by the defendant Herman Black, in the manner specified and in furtherance of the business of the city of Charlotte, but not in the exercise of a governmental function.
Defendants admit that the plaintiff was stricken by the truck of the defendant city of Charlotte, while being operated by defendant Black, but aver that the truck was being operated in the exercise of a governmental function. The defendant Herman Black, who was not served with summons until 25 March, 1938, pleads the three-year statute of limitation.
With respect to the operation and purpose of operating the truck, plaintiff offered testimony of defendant Black on adverse examination in substance as follows: Black was an employee of the city in the traffic signal division . . . engaged in fixing signal lights and installing traffic signs and in the general maintenance of the safety zones. In that department there were four employees, three permanent and one temporary. All their work is in connection with signal lights, traffic signs and the maintenance of white lines. They work every day testing signal lights that are reported out of fix. There are approximately sixty signal lights in the city. These are not permanent fixtures. They are not changed at any specified times. They last for years, but the devices that run and control them get out of order.
The city truck which Black was operating on the occasion in question is used when fixing signal lights and to carry equipment to where the employees in the traffic signal division are at work. The truck is not used for any other purposes. It is used in all time service only by the employees of that department.
On the morning in question the desk sergeant of the city police department, from which calls were made to the traffic signal division, telephoned to Black, at his home, and where he kept the truck at that time, to go to College and Trade Streets to fix a light. In response to the call Black was on his way from his home to the point named, when the plaintiff was injured. He was going to do a specific job, to install a bulb in the traffic light at College and Trade Streets which regulated traffic in that part of the city. This was his sole duty at the time.
If, however, while on this trip, Black had seen a defective place in the street or in connection with the waterworks which he thought needed *Page 739 repairs, he would have considered it his duty to report the defect to the department having supervision of the streets or of the waterworks, as the case might be. A letter from the city manager so directed generally. The traffic signal division is a separate department of the city government.
From judgment as of nonsuit, plaintiff appeals to Supreme Court and assigns error. The plaintiff, in brief filed in this Court, admits that, upon the plea of statute of limitations, the action is barred as to defendant Black, and that judgment as of nonsuit in so far as it relates to him is proper. But, as to defendant city of Charlotte, plaintiff presses challenge to correctness of judgment as of nonsuit.
The plaintiff contends that the defendant city, acting through its employee and codefendant Black, in the operation of the truck in question on a mission to repair a traffic light, was engaged in a private or proprietary function. On the other hand, the defendant city contends that while so acting and at the time and on the mission in question it was engaged in the exercise of a governmental function.
It is conceded that, if the contention of the city be correct, there is no error in the judgment below.
The decisions of this Court uniformly hold that, in the absence of some statute which subjects them to liability therefor, cities, when acting in their corporate character, or in the exercise of powers for their own advantage, may be liable for the negligent acts of their officers and agents; but when acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by their charters or by statute, and when discharging a duty imposed solely for the public benefit, they are not liable for the tortious acts of their officers or agents. Hillv. Charlotte, 72 N.C. 55; McIlhenny v. Wilmington, 127 N.C. 146,37 S.E. 187; Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849; Snider v.High Point, 168 N.C. 608, 85 S.E. 15; James v. Charlotte, 183 N.C. 630,112 S.E. 423; Cathey v. Charlotte, 197 N.C. 309, 148 S.E. 426;Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Lewis v. Hunter,212 N.C. 504, 193 S.E. 814, and numerous other cases.
This determinative question, therefore, arises: Is the installing and maintaining of traffic light signal system in and by a city, in the exercise of governmental function, or in proprietary or corporate capacity? We are of opinion that it is in the exercise of a discretionary governmental function. *Page 740
A traffic light signal system is in the interest of safety to the users of the streets and is installed solely for the public benefit. It is in effect the substituting of a signal for a policeman in regulating traffic in the use of streets. While the cities are not required to install such system, there is statutory authority for the exercise of such police power. C. S., 2787 (11) and (31), Public Laws 1917, chapter 136, sub-chapter V, sec. 1 (k) (ee), Public Laws 1919, chapter 296.
In the instant case the traffic light system is subject to the supervision of the police department. In 43 C. J., 964, Municipal Corporations, sec. 1745, it is said: "The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public."
The question has been the subject of judicial consideration in other jurisdictions. In Parsons v. City of New York, 289 N.Y. S., 198,248 A.D. 825, affirmed 273 N.Y. 547, 7 N.E.2d 685, under the provision of the city charter making it mandatory duty of police to regulate traffic, the Court said: "Signal lights are an incidental part of traffic regulation. The allegation of the complaint, admitted by failure to deny in the answer, that the city maintained the light involved in this action, necessarily means maintained through the police. Regulation of traffic, and therefore the proper maintenance of signal lights used in that connection, is the performance of a governmental duty, for neglect of the police in the exercise of which the city is not liable."
In Cleveland v. Town of Lancaster, 267 N.Y. S., 673, 239 A.D. 263, affirmed 264 N.Y. 568, 191 N.E. 568, it is stated: "The town boards were also authorized by statute to enact ordinances, rules and regulations relating to peace and good order generally. . . The erection of the traffic signals was an appropriate exercise of this power. . . . It was in effect an exercise of the police power; the substituting of a signal for a policeman."
In Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689, Knight,J., said: "Traffic signal lights serve the purpose, and were so designed, to regulate the use of the streets, where installed. There is no duty enjoined by statute upon a municipality to install such signals, and, if installed, it is done in the exercise of a discretionary power, possessed by the municipality to conserve the safety of the public using the streets. . . . We are of the opinion that the city, in installing the signal lights to warn and direct the traveling public, was exercising a governmental function, under its police power. . . ."
Again, in Auslander v. City of St. Louis; 332 Mo., 145,56 S.W.2d 778, it is said: "There is a difference, however, between the physical condition of the street and its use by the public. The keeping of a street in a condition reasonably safe for travel thereon has reference to its *Page 741 physical condition, and is a different matter than the regulation of traffic on such street. The one relates to the corporate or proprietary powers of the city, while the other relates to its governmental or police powers. . . .
"This Court held in Ex parte Cavanaugh, 313 Mo., 375, 380,280 S.W. 51, that the establishment of `automatic signals and one-way streets' is among the things which the city of St. Louis may provide as a police regulation for the safety and convenience of its inhabitants."
Plaintiff further contends that even though the installation and maintenance of a traffic light signal system may be in the exercise of a governmental function, the repairing of the system is in a proprietary or corporate capacity. An almost identical question arose in the case of Lewisv. Hunter, supra. There the car in question was owned by the city of Kinston and used exclusively in the service of its police department. But at the time of the alleged accident the car was being operated on the streets of the city by its employee, a radio mechanic, who was then repairing and testing the police radio installed in the car. Speaking to the question, Schenck, J., wrote: "While it is true the driver of the car was not a policeman, he was employed by the hour by the city to keep in proper repair and condition the radio on said automobile, and it was the function of the city in the exercise of its police power to maintain the radio, and in the performance of the work for which he was employed Spear was performing duties incident to the police power of the city, whether he was engaged in repairing or testing the radio or whether in returning the automobile to the police garage after such repairing or testing, and anything that he did for the city with the automobile in the scope of his employment was done as an incident to the police power of the city — a purely governmental function."
Likewise, in the case in hand, Black was performing duties incident to the police power of the city in going to repair the traffic light, and the use of the truck in scope of his employment was an incident to the police power, a governmental function.
Plaintiff further contends that, in view of the evidence that if the defendant Black had seen a defect in the streets or water system, he would have felt it his duty under general directions of the city manager to report the defect to the proper department, it may reasonably be inferred that he was engaged at the time of the injury to plaintiff in the performance of two duties: First, in the repair of a traffic signal light; and, secondly, in the inspection of city streets for the repair department. The evidence negatives this contention. Black was going to do a specific job, to install a bulb in the traffic light at College and Trade Streets which regulates traffic in that part of the city. This was his sole duty atthe time. *Page 742
In 43 C. J., 966, it is stated: "The same officer may at one time act in discharge of duties as a police officer of the State, and at another time as the servant of the municipality in carrying out its private powers, and if the act complained of is done in the former capacity no liability is incurred by the municipality."
The judgment below is
Affirmed.