City of Louisville v. Carter

• Decision Date: 23 February 1911
• Citation: 142 Ky. 443,134 S.W. 468
• Parties: CITY OF LOUISVILLE v. CARTER.
• Court: Kentucky Court of Appeals

134 S.W. 468

142 Ky. 443

CITY OF LOUISVILLE v. CARTER.

Court of Appeals of Kentucky.

February 23, 1911

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Harry Carter against the City of Louisville. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Huston Quin and Clayton B. Blakey, for appellant.

Edwards Ogden & Peak, J. L. Richardson, and H. O. Williams, for appellee.

LASSING J.

While playing in the street, Harry Carter, an 11 year old boy, was run over by one of the wagons belonging to the city of Louisville and severely injured. Alleging that his injury was due to the negligence of the employé of the city in charge of the wagon, through his next friend, he sued to recover damages therefor. The city denied liability. A trial resulted in a verdict in plaintiff's favor for $300. The city appeals.

A question is raised by the city as to the identity of the wagon which ran over the boy. It is urged that the evidence does not sustain the charge that the injury was inflicted by one of the city wagons. But, from the conclusion which we have reached, we will treat the case as though it were clearly established that the injury was done by a wagon belonging to the city.

Plaintiff charges, and we treat it as true, that one of the city's sprinkling carts was being driven through the streets and that it had another wagon, used by the street cleaning department, hitched onto it. This last wagon, it is claimed injured the boy. It is conceded by the plaintiff's counsel that, if the injury had been inflicted by the sprinkler while being used in sprinkling the street, no recovery could be had. But it is urged that, inasmuch as the sprinkler was not being used for sprinkling purposes, but to haul another wagon, a different rule applies. In other words that, as the sprinkler was not then being used for sprinkling the street, no governmental duty was being discharged, and hence liability attaches for the negligence of the driver.

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 employés 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 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 none of these opinions, to which our attention has been called, has the distinction here contended for been made.

In Greenwood v. City of Louisville, 13 Bush, 226, 26 Am Rep. 263, it is held that no recovery can be had...