Anderson v. City of Fargo
| Decision Date | 04 January 1922 |
| Docket Number | 358 |
| Citation | 186 N.W. 378,48 N.D. 722 |
| Court | North Dakota Supreme Court |
Rehearing denied Jan. 20, 1922.
Appeal from an order of the District court of Cass county, Englert J.
Order affirmed.
Order affirmed. Defendant entitled to his costs and disbursements on appeal. Case remanded.
Taylor Crum, (Aubrey Lawrence, of counsel), for appellant.
If a board is the agent of the city, the city is liable for its acts and omissions. 33 N.D. p. 69, et seq.
The same doctrine is held in many other cases of which the following are a few. City of Denver v. Spencer, 82 P. 590; Burridge v. City of Detroit, 76 N.W. 84; Mahon v. New York, 31 N.Y.S. 657; Denver v Peterson, 36 P. 1111; Lowe v. Salt Lake City, 44 P. 1050; Weber v. Harrisburg, 64 A. 905; Barthold v. Philadelphia, 26 A. 304; Silverman v. New York, 114 N.Y.S. 59; Powers v. City of Philadelphia, 18 Pa.Super. Co., 621; Briegel v Philadelphia, 135 Pa. 451, 19 A. 1038; Barnes v. District of Columbia, 91 U.S. 540, L. ed. 23, 440; District of Columbia v. Woodbury, 136 U.S. 450, L. ed. 34, 472; Bailey v. the Mayor 3 Hill (N.Y.) 531, Am. Dec. 38, 669; Capp v. St. Louis, 46 L.R.A. (N.S.) 731, 733.
The city of Fargo, by and through all its officers and agents, suffered and permitted the nuisance in question to remain, unsuperintended, on that crowded public play ground for weeks and weeks. Chicago v. Robbins, (U. S.) L. ed. 17, 289; Robbins v. Chicago, (U. S.) L. ed. 18, 427; Gilluly v. City of Madison, 24 N.W. 137; Parker v. Mayor, 99 Am. Dec. 486; Hughes v. City of Fon du Lac, 41 N.W. 407; Schroeder v. City of Barabo, 67 N.W. 27; Watson v. Melford, 45 A. 167; Ferris v. Board of Ed. 81 N.W. 98; Town of Suffock v. Parker, 79 Va. 660, 52 Am. Rep. 640; Roman v. City Leavenworth, 133 P. 551; See instruction No. 4, 1st col. p. 553; Kansas City v. Siese, 80 P. 626.
W. H. Shure, (B. F. Spalding, of counsel), for respondent.
A demurrer does not admit conclusions of law, neither does it admit any construction pleaded by the pleader of instruments pleaded or facts imposed by law. 21 R. C. L. 508; A. L. R. 1915E, 926.
It is not sufficient to aver that it was the defendant's duty to perform the act alleged to have been neglected. The facts and circumstances from which the law implies such duty must be alleged. Ward v. Danzeizen, 111 Ill.App. 163.
An averment that certain conduct is the duty of defendant is of no avail where facts are not stated from which the law will create the duty. Illinois Steel Co. v. McNulty, 105 Ill.App. 594.
A complaint for negligence must show the existence of a duty of defendant to exercise due care towards the person injured and a mere allegation that it was defendant's duty to do or not to do a certain act is a conclusion of law and insufficient. Pittsburgh, C. C. & St. L. Ry. Co. v. Leighteiser, 163 Ind. 31 Cyc. 54; 247, 71 N.E. 218; rehearing denied 71 N.E. 660.
The purpose and scope of a corporation is governed by the language of its creation and not by the restricted use of a word or two contained in the act. Vermont Loan & Trust Co. v. Whithed, 2 N.D. 83; Stern v. City of Fargo, 18 N.D. 289; Price v. Fargo, 24 N.D. 440.
Whatever means and instrumentalities are necessary, usual and proper for affectuating the act may be provided therein. Claiborne Co. v. Brooks, 111 U.S. 400; Merrill v. Monticello, 138 U.S. 673.
A school district is as well organized a municipality as a city and may exist with it in territory, in whole or in part, as a city may cover the territory of a county wholly or partially. There is no incompatability between them, and both are separate and different functions. The duties of the others are no part of the ordinary concerns of town or city corporations. Gray on Limitation of Taxing Power, §§ 2148, 2101; Wilson v. Board, 133 Ill. 443, 27 N.E. 203; Adams v. Ewert, 16 S.D. 133, 91 N.W. 474; Tuttle v Polk, 92 Iowa 433, 60 N.W. 733.
The city is not liable for the negligent acts of the board of education. Sullivan v. Boston, 126 Mass. 540, 9 Am. Law Rep. Ann. 817; McCarten v. City of New York, 133 N.Y.S. 939; Brown v. New York City, 66 N.Y.S. 382; Diehn v. City of Cincinnati, 25 Ohio State 305.
This appeal is from an order sustaining a demurrer to the complaint. The action is one brought by the plaintiff, a widow, against the defendant, to recover damages on account of the death of her son, a boy of 13 years of age, alleged to have been caused by the negligence of the defendant in maintaining certain school playgrounds, alleged to be owned by the city, upon which certain apparatus, hereinafter more fully described, was alleged to have been maintained by it, and by which, in the circumstances herein mentioned, the boy was struck in the head and killed.
The substance of the complaint will be mentioned in order that it may be determined whether the trial court erred in making its order sustaining the demurrer. It contains allegations to the effect that the city of Fargo was incorporated as a municipal corporation on the 12th day of April, 1875 under an act to incorporate the city of Fargo, approved March 5, 1875; that on or about the month of April, 1913, the defendant adopted the commission form of government pursuant to the provisions of chap. 77, Laws North Dakota 1911; that a copy of the Act of March 4, 1885, being a special law providing for a board of education for the city of Fargo, is made a part of the complaint, and an amendment of that act approved February 2, 1915 (Laws 1915, chap. 125), amending § 14, and repealing § 24 thereof; that in April, 1885, defendant by vote of the people organized its board of education; that the members thereof became elective officers of the defendant, a municipal corporation; that the defendant has since 1885 conducted its public schools pursuant to the provisions of the Act of March 4, 1885, and the amendment thereto; that among other real estate owned by the defendant is block 3 of Darling's addition to the city of Fargo, on which there is a certain public school building designated as "the Aggasiz School"; that at all times during the year 1920, and since, the title and ownership, control and possession of the schoolhouse, the furniture, books, and apparatus and of block 3 and all appurtenances thereof were vested in defendant; that upon the west side of block 3 is a public playground, used and frequented, and permitted to be used and frequented, by more than 500 children, ranging from 6 to 15 years of age; that upon the playground the defendant, through its officers, agents, and servants, the said board of education, wilfully and negligently, and by reason of carelessness and wrongful acts and omission of its said officers, agents, and servants, and for want of due attention to its duties, erected and suffered to be erected, and permitted to remain for several weeks prior to December 1, 1920, upon such school playground, and in a public and notorious manner, two chutes or inclined troughs, the summits of which were 8 or more feet in height, and accessible to children by means of permanent iron ladders from which the chutes or inclined troughs sloped towards the west at a steep grade to the ground; that a few feet in a westerly direction from these chutes the defendant, through its officers, agents, and servants, publicly and notoriously erected, and permitted to remain for several weeks prior to December 1, 1920, several series of heavy swings, the same being contrivances and apparatus adapted for people to swing upon to and fro, and were constructed of wood and were suspended from poles or timbers which were fastened or attached to the tops of posts or poles more than 12 feet in height with heavy wooden iron-bound or iron-mounted planks, each suspended by heavy iron chains attached to said poles or timbers, which swings, when in operation, from east to west and from west to east, were wholly unguarded or superintended by any teacher or any adult person, and were unprotected by any fence or barrier whatsoever, and without any mattress or netting thereunder; that the chutes and swings were not a part of the original plan of the public school building or public school playground, and were foreign to the original plan provided for, accepted, and used in building said public schoolhouse and running of said public resort at said public school playgrounds; that said chutes and swings were, by the neglect or by the positive act and permission of the defendant, through its officers, agents, and servants located and constructed, or permitted to be constructed, and for several weeks to remain, so as to constitute an eminently dangerous, constant, continuous, and, as to children, an attractive, enticing, inexcusible, and alluring, public nuisance, which said danger was patent and obviously apparent to any adult person of ordinary intelligence and caution; that defendant, by and through its officers, agents, and servants, did by locating, erecting, and maintaining, and by permitting such apparatus to be located, erected, and maintained did perform and suffer to be performed a wilful malfeasance and did so wilfully, carelessly, and negligently permit said chutes and swings to remain on said public resort and public school playgrounds for several weeks without...
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