Harms v. City of Beatrice

• Decision Date: 14 August 1942
• Docket Number: 31216.
• Citation: 5 N.W.2d 287,142 Neb. 219
• Parties: HARMS v. CITY OF BEATRICE.
• Court: Nebraska Supreme Court

5 N.W.2d 287

142 Neb. 219

HARMS v. CITY OF BEATRICE.

No. 31216.

Supreme Court of Nebraska

August 14, 1942

Syllabus by the Court.

1. In operating a water-works system, a city acts in its proprietary capacity, and is liable for negligence to the same extent as a private corporation engaged in the same business.

2. A service line from a water main to the property of a consumer including a meter box constructed in a public street, is a part of the water-works system of the city which it must construct and maintain in a reasonably safe condition for the protection of the public.

3. The fact that the consumer pays for the labor and materials used in constructing a service line is not a conclusive factor in determining the liability of the city in failing to keep such meter box in repair.

4. A city cannot delegate its duty to maintain its water-works system in a reasonably safe condition and thus escape liability for failure to make repairs.

Jack & Vette, of Beatrice, for appellant.

Vasey & Mattoon, of Beatrice, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

CARTER Justice.

Plaintiff brought this action to recover for injuries sustained when she stepped on a defective meter box alleged to have been negligently maintained by the city of Beatrice. The trial court sustained a general demurrer to plaintiff's second amended petition and, the plaintiff having elected to stand thereon entered a judgment of dismissal. Plaintiff appeals.

The petition alleges that the defendant city owned and maintained a system of water-works for the purpose of furnishing water at commercial rates to the inhabitants of the city. As a part of the water-works system the city maintained a meter box on the west side of Fifth street at a point approximately seven feet east of the west line of Fifth street. The meter box was located on a service line connecting the water system with private property and was between the sidewalk and the lot line, a part of the area occupied as a street. The ordinances of the city provided that meters not installed within buildings should be installed on the lot line, that the materials for constructing the meter box and service line would be furnished and installed by the city and paid for at cost by the property owner.

The petition further avers that the meter box was constructed with a metal cover which had, on December 13, 1938, and for several weeks prior thereto, been permitted to get out of repair, all of which was known or should have been known by the city.

On December 13, 1938, at about six o'clock in the evening and at a time when darkness concealed the dangerous condition of the meter box located a few inches from the sidewalk, plaintiff accidentally stepped upon it with her left foot, causing the defective covering to give way and causing the injuries, to recover for which this action was brought.

The only question for determination is whether the petition states a cause of action against the defendant city.

Municipalities are invested with two distinct classes of powers, those of governmental or public character having certain attributes of sovereignty, and those which relate to private or proprietary functions.

It is the duty of the city in the exercise of its governmental functions to keep its streets in a reasonably safe condition for public use. The liability of the city for failing to perform this duty is limited by the following statute "No city shall be liable for damages arising from defective streets, alleys, sidewalks, public parks or other public places within such city, unless actual notice in writing of the accident or injury complained of with the statement of the nature and extent thereof, and of the time when and the place where the same occurred shall be proved to have been given to the mayor or city clerk thirty days after the occurrence of such accident or injury." Comp.St.1929, sec. 16-723.

The petition does not allege the giving of the statutory notice of plaintiff's injuries and claim for damages, and consequently the facts pleaded do not state a cause of action against the city for failing to perform its duty in its governmental capacity.

In its proprietary capacity, however, a city is liable to the same extent as a private corporation for negligence resulting in injuries to the public. Henry v. City of Lincoln, 93 Neb. 331, 140 N.W. 664, 50 L.R.A.,N.S., 174; Cook v. City of Beatrice, 114 Neb. 305, 207 N.W. 518. Was the city of Beatrice liable in its proprietary capacity in failing to keep the meter box in repair and permitting it to remain in a dangerous condition for weeks prior to the happening of the accident giving rise to the present suit? There is nothing alleged in the petition which indicates that the meter box was not properly installed with materials and accessories of good quality. The meter box, with its ring and cover, was, however, purchased by the city and furnished the consumer at cost. The ordinances of the city are silent as to the ownership of the service line, all inferences as to ownership by the consumer being drawn from the fact that he must pay the cost of materials and installation. The question is whether the duty is cast upon the city to keep the meter box in repair, and, if so, the city's liability for failure to do so.

The petition cites no statute or ordinance imposing upon the city the duty to maintain the meter box. An examination of the authorities indicates a hopeless conflict in the decisions of other courts. We will therefore examine the cases in the hope that the reasoning therein contained will point the way to the better rule.

In some of the cited cases the city is relieved of liability on the...