Greenwood v. City of Louisville

• Decision Date: 25 October 1877
• Citation: 76 Ky. 226
• Parties: Greenwood v. Louisville.
• Court: Kentucky Court of Appeals

76 Ky. 226

Greenwood v. Louisville.

Court of Appeals of Kentucky.

October 25, 1877

APPEAL FROM JEFFERSON COMMON PLEAS COURT.

The opinion in this case was not marked for publication when delivered. It is now published by direction of the court.

EDWARDS & SEYMOUR FOR APPELLANT.

1. For all natural and proximate consequences of negligence of the fire department the city is liable. (Patch v Covington, 17 B. Mon. 722.)

2. It is for the city to show that it is not within the maxim " respondeat superior. "

3. Until the state assumes the burden of extinguishing fires that duty, when devolved on a city, must be regarded not as a governmental function securing immunity, but as a duty imposed in consideration of the privileges conferred by the charter.

4. The liability of the city in cases like this is analogous to the liability in reference to negligence in repairing public ways. (Weight man v. City of Washington, 1 Black, U. S Supreme Court, 42.)

T. L BURNETT FOR APPELLEE.

The City of Louisville is required by law to establish and maintain a fire department (Charter of the City of Louisville of 1870, secs. 101, 102); and therefore is not responsible for the negligence of employees in the department. (Dillon on Municipal Corporations, p. 731; 29 Ind. 190; Fisher v. Watson, 104 Mass. 98; Hafford v. New Bedford, 16 Gray; Eastman v. Meredith, 36 N. H.; Bigelow v. Randolph, 14 Gray; 19 Ohio St.; Weightman v. City of Washington, 1 Black, 42; Dargan v. Mobile, 31 Ala. 469.)

OPINION

PRYOR JUDGE:

The appellant Laura A. Greenwood instituted this action against the City of Louisville, alleging in her petition the existence of an organization known as the Fire Department, under the exclusive control of the city, created for the purpose of extinguishing fires; that the agents and employees of the defendant, when on their way to extinguish a fire with a steam fire engine drawn by horses and moving at a rapid and dangerous speed, carelessly and negligently permitted the tongue of the engine to become detached therefrom, and by reason thereof the engine ran upon the sidewalk on Seventh Street, where the appellant was standing, and where she had the lawful right to be, and ran over the plaintiff (appellant), greatly injuring her person and causing great bodily pain, etc.; that the injury resulted from the negligence of the employees of defendant and the defective machinery to which the horses were attached, etc.; that the employees were acting at the time by the direction and under the authority of defendant.

To this petition the city filed an answer, denying any negligence by those in charge of the engine and traversing the allegations of the complaint, and further answering, alleged that the general council of the corporation was required by legislative enactment to provide a fire department within the City of Louisville for the benefit of the public, and to provide by ordinance for a perfect and complete organization of the same, and to furnish all things necessary for the use of this department. That a chief engineer of this department is elected every two years by the qualified voters of the city, and is required to execute a bond for the faithful discharge of his duties. That all the power exercised by the city in reference to this department is exclusively for the public benefit, and extends no further than to provide the necessary means for maintaining the organization, etc.

It appears from the testimony in the case that while those in charge of the engine were on their way, with great speed, to the fire, the tongue became detached and the engine ran upon the sidewalk, knocking appellant down and seriously injuring her.

Upon these facts the court below, at the...