Ashbury v. City Of Norfolk

• Decision Date: 21 March 1929
• Citation: 147 S.E. 223
• Parties: ASHBURY v. CITY OF NORFOLK.
• Court: Virginia Supreme Court

147 S.E. 223

ASHBURY

v.CITY OF NORFOLK.

Supreme Court of Appeals of Virginia.

March 21, 1929.

Error to Law and Chancery Court of City of Norfolk.

Action by Virgil I. Ashbury against the City of Norfolk. Judgment for defendant, and plaintiff brings error. Affirmed.

James G. Martin and John C. Davis, both of Norfolk, for plaintiff in error.

B. W. Peatross, of Norfolk, for defendant in error.

PRENTIS, C. J. The plaintiff, Ashbury, was struck and injured while on the sidewalk on the north side of Main street near its intersection with the sidewalk on the east side of Church street, Norfolk, by one of a pair of horses which belonged to the city, which had been hitched to a trailer, then being used forthe collection of garbage on Main street. Just before the team reached Church street, the king-pin which fastened the double bar broke, which allowed the singletrees to fall on the heels of the horses, and this caused them to run away.

There was a verdict for the plaintiff which the trial court set aside as contrary to the law and the evidence, and entered final judgment for the defendant, of which judgment the plaintiff complains.

It is unnecessary for us to recite the facts in detail. There is no conflict in the evidence. The plaintiff relies solely upon the fact that the king-pin broke, while the evidence of the city tended to show that it had exercised due care, so that, had there been a verdict in favor of the defendant, it should not have been disturbed.

That, however, is not the question which is argued here. The defendant city demurred to the notice of motion, which alleged that the wagon and horses were being operated by the defendant in "the cleaning of its streets and the removal of the trash from the streets, " which horses and wagon were operated by the defendant, not in a governmental capacity, but in its corporate functions, and that the negligence of the city was the cause of the injury.

The grounds of demurrer were that the notice of motion shows on its face that the horses and wagon belonging to defendant were at the time complained of being operated by the city of Norfolk in its governmental capacity.

The trial court overruled this demurrer, and there is a cross-assignment of error as to this by the city.

The evidence showed clearly that the horses and wagon were being operated at the time in the removal of garbage which had been placed in cans on the edge of the sidewalk.

It is not apparent whether there was any change of view as to the demurrer, but it seems to be clear that the verdict was set aside because the trial court was of opinion that in the removal of garbage from the streets of the city the defendant was acting in its governmental capacity, and therefore that the city is not liable. This then raises the precise question to be here determined.

The text-writers indicate that in the removal of garbage the municipality acts in a governmental capacity, and therefore that it is not liable for negligence. 19 R. C. L. § 406, p. 1128.

In 28 Cyc. 1.305, it is said: "The performance of duties that relate to the preservation of the public health and the care of the sick is likewise of concern to the public as a whole; in executing this function the municipality and the officers through whom it acts perform governmental, or public, as distinguished from mere corporate, or private, duties, for which there is no liability, and the officers and agencies engaged in the performance of such duties are public officers for whose torts the municipal corporation is not responsible."

Many recent cases on the subject have been collected in the note to Harris v. District of Columbia, 256 U. S. 650, 41 S. Ct. 610, 65 L. Ed. 1146, 16 A. L. R. 1471. In that case the Supreme Court of the United States held that the sprinkling of streets to keep down dust for the promotion of the comfort and health of the general public is a public or governmental act, as distinguished from a private or municipal act, which exempts the District of Columbia from liability for injuries caused by one of its employees while engaged therein. We find this in the opinion in that case: "It is established doctrine that when acting in good faith municipal corporations are not liable for the manner in which they exercise discretionary powers of a public or legislative character. A different rule generally prevails as to their private or corporate powers. Dillon, Mun. Corp. (5th Ed.) § 1626 et seq., and cases cited. Application of these general principles to the facts of particular cases has occasioned much difficulty. The circumstances being stated it is not always easy to determine what power a municipal corporation is exercising. But, nothing else appearing, we are of opinion that, when sweeping the streets, a municipality is exercising its discretionary powers to protect public health and comfort and is not performing a special corporate or municipal duty to keep them in repair. This conclusion, we think, accords with common observation, harmonizes with what has been declared heretofore concerning liability of the District of Columbia for torts, and is supported by well-considered cases." Weightman v. Washington (1861) 1 Black, 39, 17 L. Ed. 52; Barnes v. District of Columbia (1875) 91 U. S. 540, 551, 23 L. Ed. 440, 443; District of Columbia v. Woodbury (1890) 136 U. S. 450, 10 S. Ct. 990, 34 L. Ed. 472; Love v. Atlanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64; Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565; Haley v. Boston, 191 Mass. 291, 77 N. E. 888, 5 L. R. A. (N. S.) 1005; Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100, 50 L. R. A. (N. S.) 1147.

There is some conflict in the cases, but the weight of authority quite certainly is to the effect that the removal of garbage by a municipality is a governmental function, which is designed primarily to promote public health and comfort, and hence that the municipality is not liable therefor in tort when the negligence which is charged occurred in the performance of that particular function, and no nuisance is thereby created.

This appears to be the rule enforced not only in the federal courts but also in California, Georgia, Iowa, Kentucky, Massachusetts, Missouri, North Carolina, New Hampshire, New Jersey, Pennsylvania, Tennessee, and Wisconsin. The contrary rule seems to pre-vail in Colorado, Illinois, Mississippi, New York, and Texas.

We cite some of the cases from state courts which appear to us to state and enforce the correct rule here applicable.

In City of Louisville v. Carter (1911) 142 Ky. 443, 134 S. W. 468, 32 L. R. A. (N. S.) 637, it appeared that, while a sprinkling cart belonging to the city was being driven through the streets, with a wagon used by the street cleaning department attached to it, the wagon injured the boy. It was conceded that, if the injury had been inflicted by the sprinkler while in use for sprinkling the streets, no recovery could have been had; but it was argued that, inasmuch as the sprinkler was not being used for sprinkling purposes, but to haul another wagon, a different rule was applicable. The court said this: "We are unable to draw the distinction which appellee's counsel would make between an injury resulting from the negligent use of the sprinkler while actually sprinkling, and one while the sprinkler was being drawn through the city from one part thereof to another. In the numerous cases that have been decided by this and other courts, holding that a city is not liable for an injury that resulted through the negligence of its employees engaged in the discharge of any of those duties commonly called 'governmental functions, ' the opinion in each is rested upon the idea that, as the city is a branch of the State government, an arm of the State, it is against public policy to permit it to be used [sued] for the negligence of those of its servants engaged in the discharge of some duty which has for its aim the protection of the life, health, or property of the citizens."

In Conelly v. City of Nashville (1897) 100 Tenn. 262, 46 S. W. 565, it appeared that, while plaintiff was sitting in a buggy standing near the sidewalk of one of the streets of the city, the driver of a sprinkling cart in the service of the city negligently caused it to collide with the wheels of the buggy, so that the animal hitched thereto became frightened, overturned the buggy, and inflicted the injury complained of. The court sustained a demurrer to the plaintiff's declaration, among other things saying: "An ordinance of the city directing the sprinkling of the streets * * * is one that is Sanitary in its character, passed, in view of the health and comfort of the general public. While engaged in doing work under such an ordinance the municipality is discharging a governmental duty, and is not responsible for the carelessness of the agent or agencies' so employed."

In Love v. Atlanta (1894) 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64. it appeared that, while the plaintiff was passing along the streets of a city, in the exercise of proper care and without fault on his part, a mule hitched to one of the garbage carts of the city was negligently permitted to run away, and, while so running, collided with the buggy of the plaintiff, causing serious injury. It was also alleged that the driver of the cart was a small negro boy, wholly incompetent to the discharge of the duty, and that the animal so employed was vicious, dangerous, and liable to run away. It was shown that the mule and cart causing the damage were in use by the city under the direction of the health board of the city, and that the servant of the city, charged with driving the cart, was then employed in cleaning the streets and removing therefrom such putrid and offensive substances as usually accumulate in...