Eaton v. City of Weiser
| Decision Date | 06 July 1906 |
| Citation | 12 Idaho 544,86 P. 541 |
| Parties | JAMES EATON, by His Guardian ad Litem, Respondent, v. THE CITY OF WEISER, Appellant |
| Court | Idaho Supreme Court |
DAMAGES-PERSONAL INJURIES-MUNICIPAL OWNERSHIP OF ELECTRIC LIGHT SYSTEM-NEGLIGENCE IN CONDUCTING AND OPERATING THE SAME-CONTRIBUTORY NEGLIGENCE.
1. The doctrine announced in Carson v. City of Genessee, 9 Idaho 244, holding cities and villages liable for negligence in the maintenance of their streets and thoroughfares in a reasonably safe condition for use by travelers in the usual modes, approved and followed.
2. Running and operating an electric light system by a municipality and the sale of electric light to private consumers is not one of its public and governmental powers and duties, but is rather a proprietary and private right and power, for the careless and negligent exercise of which the municipality will be held liable in damages the same as a private corporation or individual would be exercising like rights.
3. Municipal ownership, in the usual and common acceptation of that term, must of necessity carry with it the same duty, responsibility and liability on account of negligence that is imposed upon and attaches to private owners of similar enterprises.
4. Where a city is maintaining a wire across one of its public thoroughfares for the purpose of carrying and distributing a powerful and dangerous force like electricity, it must be held to the duty of exercising such diligence and care in maintaining and using the same as is commensurate with the dangers of the force which it is handling, in order that it may avoid and prevent injury to those rightfully engaged in their various pursuits and employments.
5. Evidence examined in this case and held that it does not establish such contributory negligence on the part of the plaintiff as to prevent and preclude him from recovering damages for the injuries sustained.
(Syllabus by the court.)
APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.
Action by plaintiff through his guardian ad litem, against the defendant, the city of Weiser, for damages on account of personal injuries sustained by coming in contact with a live wire suspended across the street so low as to interfere with travelers along such thoroughfare. Judgment for plaintiff and defendant moved for a new trial. Defendant appealed from the judgment and from the order denying his motion. Affirmed.
Judgment affirmed, with costs in favor of the respondent.
Lot L Feltham, for Appellant.
In the absence of a statutory provision imposing the liability, a municipal corporation is not liable for personal injuries to individuals occasioned through the neglect of officers of the corporation to properly perform their duties. (Arkadelphia v. Windham, 49 Ark. 139, 4 Am. St. Rep 32, 4 S.W. 450; Sievers v. San Francisco (Cal.), 56 Am. St. Rep. 153, 47 P. 687; Arnold v. City of Jose, 81 Cal. 618, 22 P. 877; Goddard v. Harpswell, 84 Me 499, 30 Am. St. Rep. 373, 24 A. 958; Hennessey v. New Bedford, 153 Mass. 260, 26 N.E. 999; People v. Esopus, 74 N.Y. 310; Rowland v. Gallatin, 75 Mo. 134, 42 Am. Rep. 395; Edgerly v. Concord, 62 N.H. 8, 13 Am. St. Rep. 533; Young v. City Council of Charleston, 20 S.C. 116, 47 Am. Rep. 827; Navasotio v. Pierce, 46 Tex. 525, 26 Am. Rep. 279; McCutcheon v. Homer, 43 Mich. 483, 38 Am. Rep. 212, 5 N.W. 668; Hewison v. City of New Haven, 37 Conn. 475, 9 Am. Rep. 342; Pray v. Mayor of Jersey City, 32 N.J.L. 394; Bates v. Rutland, 62 Vt. 178, 22 Am. St. Rep. 95, 20 A. 278, 9 L. R. A. 363.)
At common law there is no liability upon a municipality for injuries received by defective ways. (Shearman & Redfield on Negligence, sec. 346; Cooley on Torts, p. 622; 2 Dillon on Municipal Corporations, 3d ed., secs. 996-1000.)
It must affirmatively appear that the municipality has been guilty of negligence, and the general rule is that the occurrence of an accident does not raise the presumption of negligence. (Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep. 530; Bahr v. Lombard Ayers & Co., 53 N.J.L. 233, 21 A. 190, 23 A. 167; Denver & R. G. R. Co. v. Fotheringham, 17 Colo. App. 410, 68 P. 980.)
It is the duty of one who is exposed to a known danger, although he may not know the full extent of it, to use ordinary care to protect himself from any injury whatever, and he is guilty of contributory negligence if he is the author of any part of the injury resulting from his failure to exercise such care, or if, by the exercise of such care, he could have avoided the consequence of negligence ascribed to another.
Rhea & Son, for Respondent.
The decided weight of authority holds that a city is liable in damages for the negligent acts of its agents and servants in the course of their employment. (Fox v. City of Philadelphia, 208 Pa. 127, 57 A. 356, 65 L. R. A. 214; Kleopfert v. City of Minneapolis, 93 Minn. 118, 100 N.W. 669; Buser v. City of Cedar Rapids, 115 Iowa 683, 87 N.W. 404; The Major Reybold, 111 F. 414; City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445; Wagner v. City of Portland, 40 Or. 389, 67 P. 300, 60 P. 985; Gorney v. City of New York, 102 A.D. 259, 92 N.Y.S. 451; Butman v. City of Newton, 179 Mass. 1, 88 Am. St. Rep. 349, 60 N.E. 401; Twist v. City of Rochester, 165 N.Y. 619, 59 N.E. 1131; Ostrom v. City of San Antonio, 94 Tex. 523, 62 S.W. 909; Town of Colorado City v. Leafe, 28 Colo. 468, 65 P. 630; Chicago v. McGraw, 75 Ill. 566-570; Cooper v. Athens, 53 Ga. 638; Haag v. Board of Commrs., 60 Ind. 511, 28 Am. Rep. 654.)
The supreme court of this state has firmly settled the question of the liability of a city for obstructions in its streets, in the absence of a statute on the subject of liability, in the case of Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. Rep. 127, 74 P. 862. To the same effect are Morten v. Village of St. Anthony, 9 Idaho 532, 75 P. 262; Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810.
The city of Weiser is liable in this case, not only because the accident happened in the streets of the city, but also because the electric light wire which was the cause of the damage complained of was owned by the city and under its management and control. A municipal corporation is liable upon the same principle as an individual citizen for acts of non-feasance or negligence of its servants in the construction and management of its various improvements, in the absence of an express statute to the contrary. (Wallace v. Muscatine, 4 G. Greene (Iowa), 373, 61 Am. Dec. 131-133; Cotes v. City of Davenport, 9 Iowa 235; Bailey v. Mayor etc. of New York, 3 Hill (N. Y.), 532; Rochester White Lead Co. v. City of Rochester, 3 N.Y. 463, 53 Am. Dec. 316; Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361; 2 Dillon on Corporations, sec. 954; Shearman & Redfield on Negligence, 4th ed., sec. 286; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 185, 72 Am. Dec. 730; Cooley on Constitutional Limitations, 249; Esberg-Gunst Cigar Co. v. City of Portland, 34 Or. 282, 75 Am. St. Rep. 651, 55 P. 961, 43 L. R. A. 435; Twist v. City of Rochester, 55 N.Y.S. 850, 35 A.D. 508; Keasby on Electric Wires, 2d ed., 312; Aschoff v. City of Evansville, 34 Ind.App. 25, 72 N.E. 279; Dunstan v. City of New York, 91 A.D. 355, 86 N.Y.S. 562.)
Defendant was using a dangerous force, and one not generally understood. It was required to use very great care to prevent injury to person or property.
The decided weight of authority holds that when a person becomes entangled in an electric wire hanging in a public highway at a height liable to cause injury, it raises a presumption of negligence against the owner or controller of that wire. (Uggla v. West End Street R. Co., 160 Mass. 353, 39 Am. St. Rep. 481, 35 N.E. 1126; 2 Thompson on Negligence, 1220; Thompson on Electricity, sec. 178; Stephens & C. Trans. Cos. v. Western Union Tel. Co., F. Cas. No. 13,371, 8 Ben. 502; Western Union Tel. Co. v. Eyser, 2 Colo. 141; Blanchard v. Western Union Tel. Co., 60 N.Y. 510.)
The respondent obtained a judgment against the city of Weiser for $ 1,050 and costs for personal injuries received by him on account of the negligence of...
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