Hanson v. Berry

• Decision Date: 27 July 1926
• Docket Number: No. 5152.,5152.
• Citation: 54 N.D. 487,209 N.W. 1002
• Parties: HANSON v. BERRY et al.
• Court: North Dakota Supreme Court

54 N.D. 487

209 N.W. 1002

HANSON

v.BERRY et al.

No. 5152.

Supreme Court of North Dakota.

July 27, 1926.

Syllabus by the Court.

A municipality is not liable for the tort of its agent committed in the course of the performance of a governmental duty, nor for the manner in which it exercises its governmental authority, nor for the failure to exercise it properly.

Though a city may be liable in damages for injuries occasioned by an unsafe physical condition of its streets, it is not liable for an unsafe condition resulting from the failure to enforce police regulations governing traffic thereon.

Where personal injuries of the plaintiff were caused by the negligent act of a policeman while driving an automobile belonging to the city, and while engaged in the performance of a governmental duty, such automobile being driven in violation of the law of the road and traffic regulations, the city is not liable, though no reasonable necessity existed for such violations, and though the city may have countenanced and acquiesced in unnecessary uses of its automobiles by its officers and employees, and in their reckless driving of the same.

Appeal from District Court, Cass County; Chas. E. Wolfe, Judge.

Personal injury action by Chris Hanson against Patrick Berry and the City of Fargo. From an order overruling a demurrer to an amended complaint, defendant City of Fargo appeals. Order reversed.W. H. Shure, City Atty., of Fargo, for appellant.

Divet & Sgutt, of Fargo, for respondent.

BIRDZELL, J.

This is an appeal from an order overruling a demurrer to an amended complaint. The complaint purports to allege two causes of action. It is quite lengthy, and, in our opinion, a proper understanding of the case may be had without setting forth the complaint in full. It is alleged that one Patrick Berry, a police officer employed by the city of Fargo, on July 20, 1925, was driving an automobile on one of the most congested streets in the city known as Broadway, returning from having answered a call at the scene of an automobile collision; that the car he was driving belonged to the city; and that the city had negligently failed to provide it with proper brakes so that it could be stopped within a reasonable distance; that, in driving the car and in approaching the plaintiff, Berry failed and neglected to give any warning of his approach, and unlawfully drove the automobile on the left-hand side of the street at a high and excessive rate of speed, and failed to keep his eyes on the street ahead of him while driving and to observe the presence of the plaintiff; that, by reason of the wrongful and negligent acts of the defendant, Berry drove the automobile against the plaintiff, inflicting the injuries complained of. In addition to alleging the negligent acts of the policeman, the complaint specifically charges, in the first cause of action, the negligent failure on the part of the city to provide the automobile with proper brakes, making it a dangerous instrumentality to be operated on the public streets.

For a second cause of action, the plaintiff alleges that the city, in equipping and maintaining its various departments, used and kept large numbers of motor-driven vehicles; that the vehicles were used in connection with the ordinary duty of policing the streets, and for the transporting of the various officers and employees of the city; that various classes of vehicles were permitted to be used by various persons employed by the city, not only in the performance of its governmental functions, but for the convenience of such officers and employees, and not merely in instances of reasonable necessity; that, in disregard of the city's obligation to maintain a safe condition of streets, it permits, acquiesces in, countenances, and approves of, the operation of its motor-driven vehicles in disregard of traffic regulations and the speed limit prescribed by ordinance, and permits their operation upon the streets at high and dangerous rates of speed without regard to crossing stops and danger signals, and without regard to the law of the road requiring vehicles to keep to the right side, thereby at frequent intervals rendering the condition of the streets unsafe for travel by vehicles and pedestrians-all without regard to exigencies making it necessary in the ordinary and reasonable performance of governmental functions to disregard traffic regulations or speed limits.

It is alleged that on the 20th day of July the plaintiff, while rightfully traveling as a pedestrian on the public streets of Fargo, on Broadway, while the ordinary condition of travel upon said streets existed, and while in the exercise of due care and caution, was struck by one of the automobiles being operated by the city of Fargo in the immediate control of Patrick Berry; that the automobile was driven at a high and excessive rate of speed, about 35 miles per hour, driven upon the left-hand side of the street in disregard of the laws of the road, without the driver keeping a due lookout, or exercising ordinary reasonable care for the protection of people upon the streets, and without having the automobile under control, to his knowledge the automobile being unequipped with proper brakes; that the operation of the automobile upon the streets at the time and under the existing circumstances made the condition of the street unsafe for travel by pedestrians or people in other vehicles, which condition was unknown to the plaintiff or other travelers upon the street; that the operation of the automobile in the manner described was part of the general plan, scheme, or manner of the operation of motor vehicles in the control of the city upon its streets, making the use thereof dangerous to pedestrians. The complaint charges the failure to provide the automobile with brakes or appliances of any kind which would enable the driver to stop within a reasonable distance and the inability of the driver to stop on that account. It charges the defendant with actual knowledge of such condition, or that in the exercise of due and reasonable care it should have known. It charges the absence of any reasonable necessity for the use of the car in the manner it was then being used by Berry. It alleges that he was not at the time engaged in any ordinary policing function or duty; that he was not engaged in the carrying out of any governmental function of the city of Fargo; but it specifically alleges that information had come to the officers of the city respecting a collision of automobiles on one of the outlying streets, and that Berry had been directed to proceed with the automobile in question to the scene for the purpose of obtaining information with reference to the character of the accident, and that at the time of the accident he was returning to report to the officers. It is alleged, however, that no exigency existed requiring the use of excessive speed or the driving of the car upon the wrong side of the street.

The demurrer challenges the sufficiency of the allegations in substance above enumerated to state a cause of action. The distinction between the first and second causes of action is somewhat obscure. It seems, however, that in the allegations respecting the first cause the pleader has confined himself to the circumstances in which the car in question was operated by the defendant Berry with the purpose of charging that its operation in the manner described constituted a danger spot in the street at the time and place of the accident, and that the breach of duty consisted in the failure to keep the street safe at that particular time and place; while in the second cause there are allegations charging the defendant city with certain negligent practices in permitting the use of automobiles by its officers and employees...