Jones' Adm'r v. City Of Richmond

• Decision Date: 16 March 1916
• Citation: 88 S.E. 82
• Court: Virginia Supreme Court
• Parties: JONES' ADM'R. v. CITY OF RICHMOND.

88 S.E. 82

JONES' ADM'R.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Hustings Court of Richmond.

Action by the administrator of W. G. Jones against the City of Richmond. To review a judgment for defendant, plaintiff brings error. Beversed.

S. S. P. Patteson, of Richmond, and Henry Wood, of Clarksville, for plaintiff in error.

H. R. Pollard and George Wayne Anderson, both of Richmond, for defendant in error.

HARRISON, J. This action was brought by the plaintiff in error to recover of the defendant in error damages for the death of his intestate, which it is alleged was caused by the negligence of the defendant city.

The deceased was a conductor on one of the street cars of the Virginia Railway & Power Company, and was running his car south along Perry street. When he reached the intersection of Perry and Fifteenth streets, his car collided with one of the city wagons, resulting in what, at the time of the accident, appeared to be a slight bruise and abrasion not larger than a 5-cent piece on the top of one of his feet. This wound, however, subsequently became serious, and on the 9th day from the date of the injury the patient died with what is commonly known as lockjaw.

It appears that, through her employes, the city was engaged in regrading and improving McDonough street, one of the old streets in its Manchester addition, which involved the removal of a portion of the surface and hauling this surplus earth to a vacant city lot where it was needed. On the 20th of May, 1913, one of the city wagons, drawn by two mules and driven by an experienced and competent driver, was proceeding with a load of earth from McDonough street to the place of deposit, and in crossing Perry street the collision with the street car occurred. The negligence alleged by the plaintiff is that the wagon was operated with a defective brake, which failed to control it; that the driver drove the wagon at a rapid and excessive rate of speed, so that it could not be properly controlled or stopped; that the driv-er permitted the reins to remain slack in his hands and thereby failed to have proper control of his team, etc., and that these negligent acts combined to cause the wagon to run into the street car and so injure the plaintiffs intestate that he died. These allegations of negligence were vigorously denied by the defendant city, and the contention earnestly made that the accident was the result of the negligence of those in charge of the street car, in running the same at an excessive rate of speed, and in failing to keep a lookout, which would have disclosed the approach of the wagon to Perry street in ample time for the car to have come to a full stop and avoided the collision with the city's wagon.

The trial resulted in a verdict for the defendant.

At the request of the city, and over the objection of the plaintiff, the court instructed the jury, in substance, that they must find for the defendant; that the city could not be held liable for the negligence of the wagon driver, because, at the time of the accident, he was engaged in the discharge of a governmental function.

The weight of authority sustains the view that the work which the city was doing in the instant case was not of such a character as to exempt it from liability for the negligent acts of its servants and employes. in grading and improving McDonough street the city was not discharging a governmental function, but was merely performing a ministerial duty which afforded it no immunity from liability for its negligence.

in McQuillin on Municipal Corporations, vol. 6, pp. 5431-5433, it is said:

"That a municipality acts ministerially in constructing and repairing public improvements or work, including streets, and hence is liable to persons injured by negligence in the performance of such duties, and this is true notwithstanding the improvements are a public benefit, except, perhaps, where a building is being constructed for public use, such as a courthouse or the like. So it has been held in Missouri, a municipality is liable for the acts of its servant while repairing streets, in assaulting a traveler in the line of his duty, on the theory that the repair of streets is not a governmental duty."

As to when a municipal corporation is acting ministerially, the rule is well stated in Dillon on Municipal Corp. (5th Ed.) vol. 4, §§ 1665, 1741. in note 1 to the last-mentioned section the following statement of the law is italicized:

"A corporation acts judicially in selecting and adopting a plan on which a public work shall be constructed; yet as soon as it begins to carry out that plan, it acts ministerially and is bound to see that it is done in a reasonably safe and skillful manner."

in Quill v. New York, 36 App. Div. 476, 55 N. Y. Supp. 889, a city cart removing ashes came into collision with the plaintiff, who sued the city for the damages sustained by her. The defense was made that the city was not liable because it was performing a governmental function. The court held that ouch work was not governmental. The re view of the decisions in the case last cited and the reasoning is convincing.

A recent and well-considered case is Hewitt v. Seattle, 62 Wash. 377, 113 Pac. 1084, 32 L. R. A. (N. S.) 632, which holds that the duty of a city to keep its streets in repair is not a governmental but a ministerial duty, and that the city is liable to a pedestrian negligently run down and injured by its superintendent of streets while driving an automobile in the performance of his duty.

This subject is discussed and authorities cited in the case of Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294, where Judge Riely, speaking for this court, points out very clearly the distinction between the exercise of those governmental and discretionary functions for which a city is not liable, and the negligent performance of ministerial duties for which it is liable. It is there said:

"The defendant was empowered by its charter to lay off streets and walks, and improve the same, but it was wholly within its discretion when and where it would do so. For the omission to exercise the...