Jones v. City Of Williamsburg

• Decision Date: 18 January 1900
• Citation: 97 Va. 722,34 S.E. 883
• Parties: JONES. v. CITY OF WILLIAMSBURG.
• Court: Virginia Supreme Court

34 S.E. 883

97 Va. 722

JONES.

v.CITY OF WILLIAMSBURG.

Supreme Court of Appeals of Virginia.

Jan. 18, 1900.

MUNICIPAL, CORPORATION—SIDEWALKS—BICYCLING—INJURY TO PEDESTRIAN.

A city is not liable to a person for injuries resulting from being struck by a bicycle ridden on the sidewalk, or for the failure to pass an ordinance prohibiting such use of its sidewalks.

Error to circuit court of Williamsburg and county of James City.

Action by one Jones against the city of Williamsburg. From an order sustaining a demurrer to the declaration, plaintiff brings error. Affirmed.

J. N. Stubbs and B. H. Ewan, for plaintiff in error.

B. B. Munford and H. W. Anderson, for defendant in error.

RIELY, J. The plaintiff was struck and injured by a bicycle that was being ridden upon a sidewalk of one of the streets of the defendant corporation, and brought this action to recover damages for the injury. There was a demurrer to the declaration, which was sustained by the circuit court, and the case is before us upon a writ of error.

The complaint is not that the injury was caused by a bicycle that was stationary upon the sidewalk, and had been negligently allowed by the city to remain there, but that it was due to the propulsion of the bicycle against the plaintiff, while in motion, under the power and will of its rider. It is obvious, therefore, that, if the city be liable in damages for the injury, its liability results, not from a defective condition of the sidewalk, but from the improper and dangerous use that was being made of it by the bicyclist.

A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly twofold functions, the one governmental and legislative, and the other private and ministerial. In its public character, it acts as an agency of the state, to enable it the better to govern that portion of its people residing within the municipality, and to this end there is granted to or imposed upon it by the charter of its creation powers and duties to be exercised and performed exclusively for public governmental purposes. These powers are legislative and discretionary, and the municipality is exempt from liability for an injury resulting from the failure to exercise them, or from their improper or negligent exercise. In its corporate and private character there are granted unto it privileges and powers to be exercised for its own private advantage, and are for public purposes in no other sense than that the public derives a common benefit from the proper discharge of the duties imposed or assumed in consideration of the privileges and powers conferred. This latter class of powers and duties are not discretionary, but ministerial and absolute; and, for an injury resulting from negligence in their exercise or performance, the municipality is liable in a civil action for damages, in the same manner as an individual or private corporation. The line of distinction between the two classes of powers and duties is clearly drawn by the courts and text writers, and the exemption of the municipality from liability in the one case, and its liability in the other for an injury resulting from negligence, firmly established. 2 Dill. Mun. Corp. (4th Ed.) §§ 949, 966; City of Richmond v. Long's Adm'r, 17 Grat. 375; Sawyer v. Corse, Id. 230; Terry v. City of Richmond, 94 Va. 538, 27 S. E. 429; Maia's Adm'r v. Directors (Va.) 34 S. E. 617.

Cases doubtless arise in which the courts experience difficulty in determining whether the injury complained of is the result of the failure to exercise, or the negligent exercise, of a governmental and public power, or is due to negligence in the exercise or performance of a ministerial and private power or duty; but, as respects the particular case before us, there is no such difficulty.

Streets, like other highways, are for the use of the public, and their use is none the less for the public at large because they are within the municipality, and subject to its supervision and control. Streets, as popularly distinguished from sidewalks, though including the latter, are principally designed for the use of vehicles and animals, and sidewalks for the use of pedestrians. Bicycles come under the definition and description of vehicles, and sidewalks are not the proper place for them. But the right to regulate the use of the highways of the state or of the streets of a city is clearly a governmental power, and its exercise, whether by the state or by a municipal corporation as an agency of the state, is legislative and discretionary; and, being legislative and discretionary, a municipal corporation, as an arm of the state, is no more liable for the failure to exercise the power or for its improper exercise than the state itself would be.

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 power, it being legislative and discretionary, it would not be liable for an injury occurring in consequence of the omission, although, when the power was exercised, the duty to keep the streets and walks in a reasonably safe condition for travel would become a ministerial...