Bates v. Horner
| Citation | 27 A. 134,65 Vt. 471 |
| Parties | MARY E. BATES v. E. W. HORNER ET AL |
| Decision Date | 26 May 1893 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, 1893
Case for the negligence of the defendants. Plea, the general issue. Trial by jury at the March term, 1892, Ross, CH. J presiding. Verdict for the defendant. The plaintiff excepts. The opinion states the case.
Judgment affirmed.
George E. Lawrence and J. C. Baker for the plaintiff.
Before TYLER, MUNSON, START AND THOMPSON, JJ.
The plaintiff's evidence tended to show that while she was riding in the village of Rutland her horse became frightened and unmanageable by reason of the appearance and noise caused by the operation of a stone crusher, located partly on the land of one Engram and partly within the boundaries of the highway, and a little beyond the village limits; that the horse, by reason of becoming so frightened and unmanageable, went down an embankment overturned the carriage, and severely injured the plaintiff.
The plaintiff's evidence also tended to show that the stone crusher, as erected, located and operated, was a public nuisance to travellers upon the highway, and that the defendants had to do with its location, erection and operation on that occasion. The right to maintain and keep in repair the streets and highways in the territory embraced within the limits of the village of Rutland is given to the village by its charter, and the regular officers, elected by the village, having control of such maintenance and repair, are a president and eight trustees. The trustees are authorized by the charter to appoint a street commissioner, and by the charter it is made the duty of the street commissioner to superintend the construction and repair of streets, walks, culverts, sewers and drains, subject to the authority and direction of the trustees. By an ordinance adopted by the village, it is made the duty of the trustees to appoint a street commissioner, who shall have in charge the building and repairing of all streets and sidewalks in the village, the purchasing of material and procuring of labor, under the direction of the trustees; and it is provided that all highway money shall be expended by orders drawn in favor of the street commissioner. The defendants were, at the time of the injury complained of, trustees, and had been, with one other appointed by the president, a street committee of the trustees. The trustees purchased stone to be crushed for use upon the streets and highways of the village, taken from the ledge where the crusher was set up and operated. It was conceded in argument that the trustees voted to locate the stone crusher at the ledge.
The case of Bates v. Village of Rutland, 62 Vt. 178, 20 A. 278, was an action in which the plaintiff sought a recovery on account of the injury complained of in this case, and in that case it was held that the officers by whom the work was being prosecuted were, for this purpose, public officers, and that the village was not liable. The liability of public officers to individuals for negligence in the exercise of official powers and the performance of official duties is fully discussed in Daniels v. Hathaway et al., 65 Vt. 247, 26 A. 970, and it is unnecessary to repeat what is there said. That case and the cases there cited are sufficient authority for holding that the defendants are not liable, provided, in the matter complained of, they were in the exercise of strictly official powers and the performance of strictly official duties.
In the purchase of the ledge and advising and voting to there locate the stone crusher, the defendants were in the exercise of strictly official powers and duties; and, if they acted without corruption or malice, they are not accountable to an individual for damages resulting from such acts. In purchasing the ledge and voting to locate the stone crusher the trustees were adopting measures and plans for the improvement and repair of the streets and highways. It was their duty to adopt plans for this purpose. In so doing they were required to exercise judgment and discretion; and if, by reason of their failure to exercise the highest degree of judgment and discretion, their plans were defective, and could not be executed without creating a public nuisance or endangering the travelling public, they are not accountable to a private person for damages resulting from the adoption of such plans.
In Robinson v. Rohr et als., 73 Wis. 436, (2 L. R. A. (Wis.) 366, 40 N.W. 668), it is said that a board of street commissioners, when they determine upon the work and adopt plans and specifications of it, act...
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