Beach v. Town of Tarboro

*28 Schenck, J.

Tbe third and fourth exceptive assignments of error, which, relate to the court’s refusal of defendant’s motion to dismiss the action and for judgment as in ease of nonsuit lodged when the plaintiff had introduced her evidence and rested her case and renewed when all the evidence on both' sides was in, pose the determinative question as to whether the driver of the town’s truck was engaged in the performance of a governmental function at the time of the collision between said truck and the taxicab in which the plaintiff was a passenger. If .such driver was so engaged the motion to dismiss and for judgment as in case of nonsuit should have been allowed, if not so engaged it may be •conceded that the motion was properly disallowed.

“It is the general rule in this jurisdiction that a municipal corporation, when engaged in the exercise of powers and in the performance of duties conferred and enjoined upon them for the public benefit, may not be held liable for torts and wrongs of their employees and agents, unless made so by statute.

Snider v. High Point, 168 N. C., 608 ;

Harrington v. Greenville, 159 N. C., 632 ;

McIlhenney v. Wilmington, 127 N. C., 146 ;

Moffitt v. Asheville, 103 N. C., 237 ;

White v. Comrs., 90 N. C., 437 ."

Price v. Trustees, 172 N. C., 84 , 89 S. E., 1066 .

Upon the facts which the evidence tends to establish, we are constrained to hold that the acts of the defendant employee, which the plaintiff alleges were actionable negligence, were performed by him in behalf of the defendant town in the-exercise of governmental power conferred upon it. The maintenance of a street lighting system is a separate function from the sale of electricity from the same power plant. Just as in Parks-Belk Co. v. Concord, 194 N. C., 134 , 138 S. E., 599 , the rule of nonliability was held applicable to damages caused by the water used to flush the street which came from the same water main which the city used to convey water for sale to customers.

The mission of the town’s employee, out of which the alleged injury to the plaintiff arose is the determining factor of the case at bar — not what such employee was called upon to do at other times and places, but what he was engaged in doing at the particular time and place alleged. Plaintiff’s evidence shows that the purpose of the trip was to repair five street lights in the lighting system maintained for the public good and benefit — that is what he drove the truck from the power plant to do, and that is what he was proceeding to do at the time of the collision.

Holding as we do that the mission on which the town’s employee had embarked was in the performance of a governmental function, “to put on the street lights which he (I) had on the truck,” it becomes unnecessary for us to consider the other interesting questions presented in the briefs relative to the evidence and the charge.

*29 We are of the opinion and so hold that the defendant’s motion for dismissal of the action and for a judgment as in case of nonsuit lodged when the plaintiff rested her case and renewed when all the evidence •on both sides was in should have been allowed and the refusal so to do by ■the court was error for which the judgment below must be Reversed.