Dudley v. City of Flemingsburg

• Decision Date: 03 March 1903
• Citation: 115 Ky. 5,72 S.W. 327
• Parties: DUDLEY v. CITY OF FLEMINGSBURG.
• Court: Kentucky Court of Appeals

72 S.W. 327

115 Ky. 5

DUDLEY v. CITY OF FLEMINGSBURG.

Court of Appeals of Kentucky.

March 3, 1903

Appeal from circuit court, Fleming county.

"To be officially reported."

Action by W. B. Dudley against the city of Flemingsburg. Judgment for defendant, and plaintiff appeals. Affirmed.

G. A Cassidy, J. D. Pumphrey, and J. F. Maher, for appellant.

W. G Dearing and O. R. Bright, for appellee.

NUNN J.

The appellant sued the city of Flemingsburg, alleging that in the month of February, 1902, a heavy sleet had fallen, and the streets of the city were covered with ice and snow, which remained on the streets for several days, during which time the mayor and the other officials of the city suffered permitted, and encouraged men and boys to congregate on and coast down Main street, a distance of four or five hundred yards, on sleds and slides, at the rate of about 75 miles per hour, to the great danger of persons using this street and other streets crossing it; "that this coasting was kept up almost throughout the entire day of the 7th of February 1902, the day on which appellant was injured, and many complained to the authorities, the mayor, police judge, councilmen, and marshal, and they neglected and refused to prevent or stop the illegal usage and practice of coasting on the street, although the street was appropriated almost entirely to the use of boys and reckless men, white and black, who were boisterous and riotous in their behavior and manner, and the same was continued for several days, with the knowledge of the officials of the defendant, without protest from them, or any effort to prevent it, and that the officials could have prevented the illegal and dangerous use of the streets if they had made any effort to do so; that on the evening of the 7th day of February, 1902, about the hour of seven o'clock, appellant started to the business portion of the city, and in his effort to cross Main street, and when exercising ordinary care for his own safety, he was run against by one of the coasters with a sled, and was knocked down, and his head injured, his collar bone broken, and he was otherwise bruised and severely injured, and was put to great expense in the way of medical and doctor bills to effect a cure; and that he was permanently injured, to his damage in the sum of $2,000." The court below sustained a demurrer to that petition, and appellant is here on appeal.

There are two general principles underlying the administration of government of municipal corporations: The one is that a municipal corporation, in the preservation of peace maintenance of good order, and the enforcement of the laws for the safety of the public, possesses governmental functions, and represents the state. The other is where the municipal corporation exercises those powers and privileges conferred for private, local, or merely corporate purposes, peculiarly for the benefit of the corporation. Under the former the city is not liable for the malfeasance, misfeasance, or nonfeasance of its officers. Under the latter, it is. Malfeasance is the unjust performance of some act which the party had no right, or which he had contracted not, to do. Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner. Nonfeasance is the nonperformance of some act which ought to be performed. Appellant's petition is, in substance and effect, to recover damages from appellee for personal injuries by reason of the misfeasance or nonfeasance of its officials in authorizing and consenting to the coasting on its streets by disorderly persons and riotous assemblies, and failing to prohibit and prevent same. In the case of Schultz v. City of Milwaukee, 49 Wis. 254, 5 N.W. 342, 35 Am. Rep. 779, the court said: "The coasting or sliding down Poplar street, in the manner and to the extent charged in the complaint, was, while being indulged in, a grievous public nuisance, which the city authorities ought to have prevented or suppressed. But this duty is a public or police, rather than a corporate duty, in the performance of which the corporation, as such, has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community." And the court in that case relieved the city from liability. In the case of Faulkner v. City of Aurora, 44 Am. Rep. 9 (a case in which the facts are the same as those in the case at bar), the court said: "It is obvious that in the case before us the injury did...