Etienne Latulippe v. City of Burlington

• Decision Date: 07 October 1919
• Citation: 108 A. 425,93 Vt. 434
• Parties: ETIENNE LATULIPPE v. CITY OF BURLINGTON
• Court: Vermont Supreme Court

108 A. 425

93 Vt. 434

ETIENNE LATULIPPE v. CITY OF BURLINGTON

Supreme Court of Vermont

October 7, 1919

May Term, 1919.

ACTION OF TORT for negligence. Plea, the general issue. Trial by Court at the September Term, 1911, Chittenden County Stanton, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

John H. Mimms for the plaintiff.

Theo. E. Hopkins for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

MILES

This is an action of tort to recover damages for an injury to the plaintiff while walking upon the sidewalk of one of the public streets in defendant city, and resulted, as the trial court has found, from a fall caused by a defect in the sidewalk, conceded to be within the limits of a street which the defendant was bound by law to maintain and keep in repair. The case was tried by court, facts were found and judgment rendered thereon for the defendant, to which the plaintiff excepted.

To entitle the plaintiff to recover for a neglect in the care of the sidewalk, the fact must appear that the defendant owed her a duty in respect to the safe condition of the sidewalk at the point where the injury was received, which it failed to perform, and that there is a legal right to recover on account of such neglect.

The trial court has found that the defendant, whose duty it was to keep the public street in suitable repair, was negligent in the care of the sidewalk in question, and that the plaintiff was without negligence. Viewed literally, the finding may be construed as its language imports; but when considered in connection with the judgment rendered upon the facts found, and in view of the fact that the care of public streets, including sidewalks, is a governmental function, the finding was in effect that the officers having charge of the repairs of the sidewalk in question were negligent and not the defendant. The mere fact that a governmental duty is imposed upon a municipality, in the absence of any statutory provision relating to that matter, does not render the municipality liable for an injury resulting from the neglect of that duty. In such case the acts and omissions constituting the negligence complained of are not deemed to be the acts and omissions of the municipality, but rather those of the officers having charge of the matter, who are considered as acting in behalf of the State...