City of Denver v. Dunsmore

• Decision Date: 18 April 1884
• Citation: 7 Colo. 328,3 P. 705
• Parties: CITY OF DENVER v. DUNSMORE.
• Court: Colorado Supreme Court

3 P. 705

7 Colo. 328

CITY OF DENVER v. DUNSMORE.

Supreme Court of Colorado

April 18, 1884

An implied liability rests upon municipal corporations proper to keep in repair the streets and bridges within their limits and actions will lie against them for damages suffered in consequence of their neglect so to do.

The grant and acceptance of franchises from the government whether by individuals or corporations, imposes upon the grantee the duty of performing all the conditions stated and implied in the grant. Daniels v. City of Denver, 2 Colo. 669, distinguished.

To entitle a plaintiff to damages, in an action for negligence he must have used reasonable or ordinary care to avoid the accident; that is, such care as is usually exercised under like circumstances by persons of average prudence. Whether or not he has done this is a question for the jury.

To warrant a court in interfering with the discretion of a jury in assessing damages, it must appear that the amount of damages given is so disproportionate to the injury received as to show that the jury were influenced by prejudice misapprehension, or corrupt or improper consideration.

Where a party inadvertently omits to introduce in evidence all his testimony on the examination in chief, it is in the discretion of the court to allow the omission to be supplied, under section 167, Civil Code; and the mere statement that expert witnesses have been dismissed, and cannot be recalled to testify to points brought out when such omission is supplied, is not a sufficient assignment of error.

Appeal from the district court of Arapahoe county.

John L. Jerome, for appellant.

C. W. Wright and W. S. Decker, for appellees.

BECK C.J.

The principal question raised by the assignment of errors, and discussed in the briefs of counsel for both parties, is whether an implied liability rests upon municipal corporation proper, under the laws of this state, to keep in repair the streets and bridges within their corporate limits; and whether actions lie against them at the suits of individuals for special damages suffered in consequence of their neglect so to do. It is conceded that the legislature has not expressly given such right of action either by the general statute, or by the special charter under which the city of Denver was incorporated. The right to maintain such actions for damages, therefore, if it exists, depends upon principle and precedent. Judgment was rendered against the city in the court below and upon this appeal its counsel says:

'In seeking a reversal of this judgment, the reasons urged by appellant may be submitted under two heads: (1) The corporation of the city of Denver is exempt from all liability to individuals for special damages suffered by reason of failure to repair streets or bridges. The functions of the corporation are purely governmental, and the remedy for malfeasance by public officers is by indictment. (2) We rely upon the specific exceptions reserved by appellant in the court below.'

Counsel on both sides have discussed the questions involved very fully, and have cited and rely upon, as precedents supporting their respective theories, a list of cases extending from an early period in the seventeenth century up to the present time. The several propositions of counsel for the city upon the first ground for reversal, as we understand them, are substantially as follows: First, that at common law no action for damages lay against a municipality for negligence in the exercise of its public duties or powers; second, the almost universal rule of decision is that in the absence of statute to that effect no such liability attaches to quasi municipal corporations, such as counties and unincorporated towns; third, no such liability is created by any statute of this state as against either municipal corporations proper or quasi municipal corporations, while the powers conferred by charter in the one case and by the general law in the other, respecting the opening and maintenance of highways, and the building and repairs of bridges, are practically the same in both cases. No such liability, therefore, exists in either case.

Illustrative of the doctrine contended for, counsel for appellant says, if this accident had occurred upon a highway, outside the city limits, the action could not be maintained against Arapahoe county. The substance of the whole argument is that the courts which have held municipal corporations liable to individuals for special damages have done so in violation of common-law principles and precedents, and without assigning any logical reasons why, in absence of an express statute fixing such liability, the same rule of decision should not be applied as in cases of quasi corporations, against which it is not pretended that such liability attaches.

Counsel for appellant insists throughout the entire discussion that unless this court can point out a tangible distinction between the powers, privileges, and duties of these two classes of corporations under our statutes, the precedent to be established for this state respecting their liabilities, in actions of this character, must be the same for both classes. As to this proposition, we are of opinion that the argument of counsel, as well as the authorities cited, furnish much stronger reasons for maintaining the liability of quasi corporations, in view of their extended privileges and powers in this country, than for the rule of non-liability contended for as to municipal corporations proper. The line of reasoning employed, if pursued to the extent insisted upon, would compel us to decide what may be an open question in this state, and one not presented by the record before us, viz., whether, under the statutes of this state, a county is liable to an individual for injuries resulting to him or his property from neglect of the county authorities to repair a bridge or highway. It is sufficient to say that we do not consider it either necessary or proper to decide that question in this case.

That quasi corporations, such as counties and unincorporated towns and villages, did not incur such liability by the rules of the common law, is clear from the decisions of the English courts. It is likewise true that the same rule of decision, with few exceptions, has been followed in this country as to this class of corporations.

The doctrine seems to have been first announced in the court of king's bench in 1788, in the case of Russell v. The Men Dwelling in the County of Devon, 2 Term R. 667. The wagon of the plaintiffs was damaged in consequence of a county bridge being out of repair, and they brought suit for damages against the inhabitants of the county. It was held that the action could not be maintained, the ground of the ruling appearing to be that the county was not a corporation, and had no corporate fund or estate out of which a judgment for damages could be satisfied. If collected out of the private estate of one or more individuals, all the other inhabitants would be liable to contribute their respective proportions, and this would give rise to a multiplicity of suits for reimbursement; that even if the county could be regarded as a corporation, the principle that damages cannot be recovered against the corporators in their individual capacity would prevent a recovery; also that there was no precedent for the recovery of a judgment under such circumstances, save where the legislature had given a remedy.

We perceive nothing in the grounds assigned for denying the right of action, or in the reasoning of the court, to warrant an inference that such an action would not lie, at common law, against a municipal corporation, as to which the obstacles mentioned in that case did not exist. The almost necessary inference, from the language of the court, would seem to be the other way. We have examined a number of the English cases cited in the briefs of counsel, and find that the right of action by individuals against chartered municipal corporations, for damages sustained in consequence of a failure to repair public improvements, were usually upheld.

It was held in Henly v. Mayor of Lyme, 5 Bing. 91, that the corporation of the borough of Lyme, under the terms of its royal charter, was liable to an individual whose property had been damaged by an overflow of the sea, caused by the neglect of the corporation to repair certain banks, mounds, and sea-walls.

Another leading English case, holding that a chartered corporation was liable for neglect to perform duties enjoined by the charter, was Merssy Docks v. Gibbs and Mersey Docks v. Pierce, (tried together in one action,) 11 H. L. Cas. 686. Plaintiffs were the owners of a cargo of guano, and when the ship carrying it arrived at the port of Liverpool, in endeavoring to enter one of the docks it struck against and became imbedded in a large bank of mud which had negligently been permitted to accumulate at the entrance, and the ship and cargo were damaged in consequence. Mr. Justice BLACKBURN delivered the joint opinion of the judges who heard the arguments, reviewed a long list of cases bearing on the questions raised, and held that defendants were liable. This opinion was approved by the house of lords.

The basis of the recovery in these and similar cases seems to have been that the privileges and emoluments granted by the charters constituted a consideration for the performance of the duties imposed upon the corporations, and by the voluntary acceptance of the charters the corporations had bound themselves, in the nature of a contract, to the performance of such municipal duties.

In Henly v. Mayor of Lyme, supra, the royal charter cast upon the corporation the burden of maintaining and repairing sea-walls and other public...