Barnes v. City of Carson

• Citation: 110 P. 3,33 Nev. 17
• Decision Date: 30 July 1910
• Docket Number: 1,885.
• Parties: BARNES v. CITY OF CARSON.
• Court: Supreme Court of Nevada

110 P. 3

33 Nev. 17

BARNES v. CITY OF CARSON.

No. 1,885.

Supreme Court of Nevada

July 30, 1910

Appeal from District Court, Ormsby County.

Action for personal injuries by Theresa Barnes against the City of Carson. Judgment for plaintiff, and defendant appeals. Affirmed.

Roberts & Sanford and Summerfield & Curler (Robert Richards, of counsel), for appellant. Samuel Platt and Alfred Chartz, for respondent.

SWEENEY J.

Respondent obtained a judgment against the appellant in the sum of $5,000 for personal injuries on account of falling into an excavation made in one of the public streets of the city of Carson, which excavation was alleged to have been made by the appellant and negligently left unprotected. From the judgment, and from an order denying the defendant's motion for a new trial, defendant has appealed.

It is the main contention of appellant that the proofs failed to show that the excavation was made under the authority of the city trustees or that they, with knowledge, ratified the acts of the persons who performed the work. It is the contention of appellant that the evidence shows, without conflict, that the work was done under the direction of the city marshal acting independently of the city trustees, and that there was no proof that he was authorized by the said city trustees to perform such work, nor was his act ratified by the said trustees with knowledge of the circumstances. It is further contended upon the part of appellant that the said city marshal, by virtue of his office, had no power to make the excavation, nor did he possess, by virtue of his office, any supervision over the streets and alleys of the city of Carson. Section 10 of the act incorporating the city of Carson (St. 1875, c. 43, as amended by St. 1907, c. 29) provides: "The board of trustees shall have the following powers: *** 3. To lay out, extend or change the streets and alleys in said city and provide for the grading draining, cleaning, widening, lighting or otherwise improving the same; also to provide for the construction, repair preservation, grade and width of sidewalks, bridges, drains and sewers and for the prevention and removal of obstructions from the streets, alleys and sidewalks, drains and sewers of said city. ***" It may be conceded, under this provision of the statute, that the control of the streets, sidewalks and alleys of Carson City is exclusively in the hands of the city trustees, and that the city marshal, by virtue of his office, has no power or control over the same. Whatever acts the city marshal may perform in relation to the streets sidewalks, and alleys of the city must be by virtue of authority from the city trustees, or else they are, in law, but the mere acts of a stranger.

The excavation in question was made by one A. Lafreniere, who testified that he was employed by and acting under the general direction of the city marshal. The said Lafreniere testified that he had been in the employ of the city marshal for about four years prior to the accident in question, and that he was paid for his services by the city. It also appears from the record that the said Lafreniere was the man generally in charge of the street work for the city. While Mr. Lafreniere testified that he was employed by and acting under the direction of the city...