Griffith v. City of Butte

• Decision Date: 17 March 1925
• Docket Number: 5615.
• Citation: 234 P. 829,72 Mont. 552
• Parties: GRIFFITH v. CITY OF BUTTE et al.
• Court: Montana Supreme Court

234 P. 829

72 Mont. 552

GRIFFITH v. CITY OF BUTTE et al.

No. 5615.

Supreme Court of Montana

March 17, 1925

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by Raymond Griffith, by his guardian ad litem, Gomer T Griffith, against the City of Butte and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

John T Andrew and F. E. Blodgett, both of Butte, for appellant.

Joseph J. McCaffery and F. J. Sullivan, both of Butte, for respondent.

STARK J.

The plaintiff, a minor of the age of 13 years, by his guardian ad litem, brought this action against the defendants to recover damages for personal injuries alleged to have been sustained by him in being run over by an automobile sprinkler truck which was owned by and under the care, supervision, and control of the defendant city, and was at the time plaintiff received his injuries being operated upon the public streets of the city of Butte by the defendant Ollie Shoemaker as the agent, servant, and employé of the defendant city in the performance of his duties as such and acting within the scope of his employment. The defendants appeared separately by motions to strike certain portions of the complaint, which motions were granted. The defendant Shoemaker did not appear further in the action.

A general demurrer to the complaint was filed by the defendant city, which was overruled, and thereafter that defendant filed its answer, in which it admitted that it had the care, supervision, and control of the automobile sprinkler truck in question, and also had the care, regulation, and control of the public streets within the city of Butte, and that at all the times mentioned in the complaint the defendant Shoemaker was its servant, but denied the allegations of negligence. As a separate and affirmative defense it was alleged that, if the plaintiff received an injury as alleged in the complaint, the same was due to his own carelessness and negligence which caused and contributed to his injuries.

The cause was tried to a jury, and resulted in a verdict and judgment in favor of plaintiff, from which the defendant city has appealed.

The evidence on the part of the plaintiff was to the effect that Montana street of the city of Butte runs north and south and Gold street east and west and intersects Montana street, and at the point of intersection, and northerly therefrom, Montana street has a grade of about 7 per cent., sloping to the south. On the east side of Montana street, about 15 or 20 feet north of Gold street, a hydrant is located from which water was taken to fill the tank of the motor sprinkling truck involved herein. About 11:45 a. m. on October 3, 1922, the plaintiff, having come from the Webster school, which was located nearby, on his way home stopped at the northeast corner of Montana and Gold streets, and hailed a companion, asking for a ride on the latter's bicycle. This request being granted, the plaintiff stepped off the sidewalk onto the east side of Montana street for the purpose of rolling up his pants' legs in preparation for the ride on the bicycle. As he did so, he noticed the sprinkling truck standing at the hydrant while its tank was being filled. The truck was headed north. The plaintiff in rolling up his pants' legs was stooped over, facing south, and while he was in that position the defendant Shoemaker, who was in charge of the sprinkler truck, without starting the engine, and without sounding any signal or giving any warning, allowed it to back down the east side of Montana street and swing around onto the north side of Gold street, and in doing so ran into the plaintiff, knocked him down, ran over him, and caused the injuries complained of.

The plaintiff's witnesses McAlpin, Mondloch, and Berryman referred to the truck which ran over the plaintiff as the "city sprinkler," as a "city sprinkler truck," and the "sprinkler." The plaintiff himself said that shortly before the accident he "saw the water truck standing near there," and further stated:

"I have seen that sprinkling truck quite a lot. It has always been down that way sprinkling the streets when I was going to school."

And:

"I saw this truck, before I was injured, quite a few times around the streets."

On the part of the defendant it was shown that the defendant Shoemaker on the day in question was engaged in the regular employment of driving a sprinkling truck for the sprinkling of certain specified streets. When the plaintiff rested his case the defendant city moved the court to grant a nonsuit, upon the grounds: First, that the injury alleged to have been committed, if committed at all, was done while the employé of the city of Butte, Ollie Shoemaker, was engaged in operating a sprinkling truck, and which was one of the governmental functions of the city of Butte; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that there is no statute upon which the city may be held liable or no statute making a municipal corporation in the state of Montana liable for an injury of this character and committed as alleged. This motion was denied.

There are five assignments of error, the first four of which present for consideration only the question whether under any view the city is liable for the injuries inflicted upon the plaintiff through the negligence of its employé Shoemaker in driving the auto sprinkling truck.

It is the contention of counsel for defendant that the sprinkling of streets is a governmental function, and that the city is not liable to any person who may be injured while it is engaged in doing so.

The authorities are all agreed upon the proposition that the functions of municipal corporations, although all of a public nature, are properly divisible into two great classes: (1) Governmental, which are those conferred upon such a corporation as a local agency of prescribed and limited jurisdiction to be employed in administering the affairs of the state and promoting the public welfare generally; and (2) municipal, being those granted for the special benefit and advantage of the urban community embraced within the corporate boundaries. 28 Cyc. 267.

"It is the settled rule that a municipality is liable at common law for its torts in the performance or nonperformance of municipal or corporate duties as distinguished from governmental duties. In other words, where its officers or servants are in the exercise of power conferred upon the municipality for its private benefit or pecuniary profit, and damage results from their negligence or misfeasance, the municipality is liable to the same extent as in the case of private corporations or individuals." Section 2622, McQuillin on Municipal Corporations.

The rule thus announced is not questioned in any state except South Carolina. The main difficulty which confronts the courts in cases of this kind is to draw the line of distinction between governmental duties and municipal or corporate duties. As said by the Supreme Court of Mississippi in Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L. R. A. (N. S.) 649:

"It is a matter of no little difficulty to define what are and what are not purely governmental duties of a city. To a very large extent these questions can only be settled by the facts of each particular case, so variant are the conditions under which this question arises. The public or governmental duties of a city are those given by the state to the city as a part of the state's sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private or corporate duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city the city is liable for all damage just as an individual would be."

In that case the defendant city was held liable for injuries to a child inflicted by the negligence of the driver of one of its garbage carts engaged in the hauling of rubbish from its streets.

In the instant case we are called upon to determine whether the mere fact that the city's servant, at the time he negligently inflicted injuries on the plaintiff, was engaged in driving a sprinkler truck for the sprinkling of portions of three or four streets relieved the city from liability for his negligence. Counsel for the respective parties have directed attention to numerous cases which they claim support their contentions of liability or nonliability under the circumstances detailed, and these, with many others, have been examined in the course of the investigation, and to them attention is now directed.

Counsel for plaintiff relies upon the following cases: Denver v. Maurer, 47 Colo. 209, 106 P. 875, 135 Am. St. Rep. 210; Missano v. New York, 160 N.Y. 123, 54 N.E. 744; Silverman v. New York (Sup.) 114 N.Y.S. 59; Quill v. New York, 36 A.D. 476, 55 N.Y.S. 889; Ostrom v. San Antonio, 94 Tex. 523, 62 S.W. 909; Opocensky v. City of South Omaha, 101 Neb. 336, 163 N.W. 325, L. R. A. 1917E, 1170; Jones, Adm'r, v. City of Richmond, 118 Va. 612, 88 S.E. 82; Hewitt v. City of Seattle, 62 Wash. 377, 113 P. 1084, 32 L. R. A. (N. S.) 632; Johnston v. City of Chicago, 258 Ill. 494, 101 N.E. 960, 45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339; Fowler v. City of Cleveland, 100 Ohio St. 158, 126 N.E. 72, 9 A. L. R. 131. All of these cases recognize the general rule stated in section 2622, McQuillin on Municipal Corporations, above, and make varying applications of it.

In Denver v. Maurer the city was held liable to a pedestrian who was injured by tripping over a hose stretched across the sidewalk while being used to flush a storm sewer which had become clogged with filth so as to be a...