Clain v. City of Burlington, 90

• Decision Date: 06 February 1953
• Docket Number: Docket 22481.,No. 90,90
• Citation: 202 F.2d 532
• Parties: CLAIN v. CITY OF BURLINGTON.
• Court: U.S. Court of Appeals — Second Circuit

202 F.2d 532 (1953)

CLAIN v. CITY OF BURLINGTON.

No. 90, Docket 22481.

United States Court of Appeals Second Circuit.

Argued November 5, 1952.

Decided February 6, 1953.

Bernard J. Leddy, Leary & Leddy, Burlington, Vt., for appellant.

A. Pearley Feen, Paul D. Sheehey, and Philip W. Hunt, Burlington, Vt., for appellee.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment dismissing the complaint under Fed.Rules Civ.Proc. rule 50(b), 28 U.S.C.A., notwithstanding a verdict for the plaintiff. The action was brought in the U. S. District Court because the plaintiff is a citizen of the State of Washington and the defendant is a municipal corporation of Vermont. The complaint alleged that the plaintiff had been injured, while a passenger in a motor car in the streets of Burlington, when the car collided at a street crossing with a "silent policeman" which was being repaired, but which the defendant failed properly to light or otherwise to guard. The "policeman" was a block of concrete two feet high, about four feet square at the bottom and three feet at the top; and when finished, it was to carry a metal holder of four lights that flashed automatically to guide traffic along either street in turn. It was also to carry at its base a white light, always lighted, that would illuminate the streets over a circle twenty-four feet in diameter. The concrete block had been finished and was awaiting the hardening of the cement before the holder was put in place; and meanwhile a single white electric bulb, 100 watts in power, had been set on top of it, at the end of a twelve inch pole. The accident happened at night, although the bulb was lighted. The jury found a verdict for the plaintiff on the ground that the block as lighted was a negligent obstruction in the driveway, for which the city was liable; we are to decide the case on the assumption that this finding was justified.

Like most of the states, Vermont early adopted the doctrine that municipalities, being administrative units of the State, shared the State's immunity from suits for negligence in the discharge of their statutory powers. However, as time went on, villages and cities began more and more to dispense to their residents for pay services that individuals had theretofore supplied — so far as they had existed at all — either severally or by mutual associations; and the courts began to think it unreasonable to treat such activities as though they were the same as the older and more vital services of protection against violence and fire, maintenance of highways, and the like. Injuries done to an individual in performing such functions were so like the same services, performed by "public utility" corporations, that it seemed intolerable not to treat recoveries for the negligent exercise of the powers granted as a cost of the service rendered. Thus arose a distinction between "governmental," and "proprietary," activities, that, as might be expected, it has proved difficult to apply. For instance, if a city supplies its residents with light or water or heat, a priori there would seem to be as much reason to treat these as an exercise of powers granted by the State as to which the city is immune from suit, as when it provides protection to property from fire, or maintains convenient streets. Indeed, were one to go far enough back, the "governmental" functions were themselves left to selfhelp, or at least to mutual enterprise. Since the distinction is therefore conventional, the case at bar is especially proper for the application of the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and we need not look beyond the decisions of Vermont itself, whose Supreme Court has very often considered the matter.

In Winn v. Village of Rutland, 1880, 52 Vt. 481, the plaintiff sued the village for damaging his land negligently by building a sewer across it. The village justified under its statutory authority; but the court held that the defendant's right of entry upon the land was conditioned upon proper performance of the prescribed work, and that, if the condition was not fulfilled, the authority was not an excuse. There being no occasion to discuss the nature of the municipal function involved, the court did not do so. In Welsh v. Village of Rutland, 1883, 56 Vt. 228, the plaintiff, who was passing on the sidewalk, slipped upon ice near a hydrant that was part of the fire protection of the village. The hydrant had frozen and a fireman had let water from it spill out in thawing it out. The court denied the claim because the hydrant was part of the apparatus installed by the village in the exercise of a "governmental function," although, as it noticed, the water-works served both "public and private uses." On the other hand, in Wilkins v. Village of Rutland, 1889, 61 Vt. 336, 17 A. 735, the village was held liable for damage caused by a "water-box" that was part of a system both to supply individuals with water and to protect the village against fire. The box was used to control the water supply to a private house, and the court was solicitous to find that the damage arose from a defect in the box itself; not because it had been carelessly set so as to form an obstruction in the street. Apparently, if there had been no defect in the "water-box," the plaintiff would not have succeeded; but there was no discussion of "governmental," as distinct from "proprietary functions." In Bates v. Village of Rutland, 1890, 62 Vt. 178, 20 A. 278, 279, 9 L.R.A. 363, a stone-crusher, being used to prepare the surface of a street, scared the plaintiff's horse; and the complaint was dismissed because repairing and maintaining the streets is an exercise of the "powers of government." In Morgan v. Village of Stowe, 1918, 92 Vt. 338, 104 A. 339, L.R.A.1918F, 1000, the plaintiff ran into a hydrant set too far out in the street. The water system was used, not only for fire protection, but to supply residents with water, so that the situation was the same as in Welsh v. Village of Rutland, supra, 56 Vt. 228. However, the court apparently felt it necessary to express a distinction that it had only implied before: i. e., that the test was whether the offending object was used only for "a public and governmental" act. Sanborn v. Village of Enosberg Falls, 1914, 87 Vt. 479, 89 A. 746, 747, is almost identical; Latulippe v. City of Burlington, 1919, 93 Vt. 434, 108 A. 425, concerns a defect in a sidewalk and adds nothing; Stone v. Wood, 1932, 104 Vt. 105, 157 A. 829, is important only for the dictum that installing traffic signals is a part of the "duty of conserving public peace and safety".

None of these decisions touched the situation where the offending object might be used in the exercise either of a "governmental" or of a "proprietary" power, and Boguski v. City of Winooski, 1936, 108 Vt. 380, 187 A. 808, did involve just that. The City of Winooski had installed a water system both for fire protection and to supply the residents with water. On occasion the system furnished an inadequate head of water to put out fires, and the city availed itself of an independent reservoir, maintained by the American Woolen Company. The water for this reservoir was taken from the Winooski River, and was not fit to drink; but the City set a valve in the discharge pipe of the reservoir which was ordinarily kept closed, but which was opened when high pressure was needed during a fire. Through the negligence of the city's employees this valve was left open so that water from the reservoir flowed into the service mains that supplied the houses; and one of the residents drank the water, contracted typhoid fever, and died. The village was held liable because, although its use of the valve to put out fires was assumed to be "governmental," it was not using the valve for that purpose when the water flowed from the reservoir into the service main. It would seem that the point need not have been decided, because the village had abandoned any use of the reservoir and the valve had ceased to have any "governmental" use, but the court plainly meant to put its decision upon the ground that we have mentioned. Lemieux v. City of St. Albans, 1942, 112 Vt. 512, 28 A.2d 373, Farmer v. Poultney School District, 1943, 113 Vt. 147, 30 A.2d 89, and Griswold v. Town School District of Weathersfield, 1952, 117 Vt. 224, 88 A.2d 829, do not add anything, save as they show that the court has shown no indication of any tendency to depart from its earlier decisions.

In the case at bar the plaintiff cannot successfully rely upon either the block itself, or upon the inadequacy of the bulb properly to light it. The block was put up to make travel in the street safer and more convenient; and it is unnecessary to argue that that was an exercise of a "governmental" power. Indeed, the plaintiff does not argue the contrary. Moreover, if we assume, as the verdict requires us to do, that the bulb was inadequate, there is no difference between making a street safe at night by lighting up an obstacle, and freeing it of an obstacle. Each is the exercise of a "governmental" power: i. e., making the street safe for travel. There remains only the fact that the bulb got its current from a lighting system, which was supplied both to the streets and to private houses. However, it was not the current, but the bulb, that was at fault; and the bulb was not used in the exercise of any "proprietary" power, but to protect travel on the street. That alone is an answer to the plaintiff's argument; but she is in no better position, even though we were to treat the current as part of the offending object, for even so, whatever current fed the bulb was itself used "governmentally." Finally, even were we to push the reasoning to the fantastic extreme of treating the generating plant as a contributing offending object, the plaintiff would still be met by the doctrine...