Lynch v. City of North Yakima

• Decision Date: 28 March 1905
• Citation: 37 Wash. 657,80 P. 79
• Parties: LYNCH v. CITY OF NORTH YAKIMA.
• Court: Washington Supreme Court

80 P. 79

37 Wash. 657

LYNCH v. CITY OF NORTH YAKIMA.

Supreme Court of Washington

March 28, 1905

Appeal from Superior Court, Yakima County; Frank H. Rudkin, Judge.

Action by Andrew J. Lynch against the city of North Yakima. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Thompson & Allen and H. J. Snively, for appellant.

Snyder & Preble, for respondent.

ROOT J.

Appellant sued respondent, a city of the third class, for damages, and in his complaint sets forth two alleged causes of action. In the first he avers that respondent employed one Hauser as chief of its fire department, who had authority to and did employ appellant as driver of a team of horses which respondent furnished to draw the fire engine; that it was part of appellant's duty to drill said horses 'to work to the bell'--that is, to rush from their stalls expeditiously when a fire alarm was sounded; that an 'electric whip' is an inexpensive appliance, commonly used for thus drilling horses, which, if used, would have made it unnecessary for appellant to be in the position where he was when hurt as herein stated; that, in the absence of such electric whip, it was necessary for appellant to stand behind said horses, and strike them with a stick, when the alarm was sounded; that at the time of his injury he was standing behind one of said horses, preparatory to striking him when the alarm should sound, and while there he was kicked by one of said horses, and very severely injured; that said Hauser had told appellant that said horses were a 'good, gentle work team,' and appellant relied upon said statement, never himself having observed any viciousness on the part of said animals; that he had been in charge of said team about seven weeks; that said injury was caused by the carelessness and negligence of the defendant in not supplying said electric whip, and in providing a vicious and kicking horse, and in carelessly and negligently, through said Hauser, holding out to appellant that said horses were gentle work horses. In his second alleged cause of action he sets forth his employment as mentioned in the first cause of action, and alleges that he was required to be and remain at a certain building in a certain room where the fire apparatus and horses were kept so as to be in readiness in case of a fire alarm; and that on the occasion in question, while in said room, one of the respondent's policemen brought in a man 'charged with having been exposed to smallpox,' and whom the said officer should have known by the use of ordinary care to have been so exposed; that while in said room said man was fumigated by this appellant, and thereupon left the room that by reason of said exposure this appellant contracted the smallpox, and, before he was aware of that fact, four of his children contracted the disease from him; that appellant was thus exposed and sickened by reason of the negligence and carelessness and lack of ordinary care on the part of respondent in not providing by ordinance or otherwise a place for persons who had been in contact with the smallpox to be taken away and apart from other persons, and in not directing its officers and policemen to keep such exposed persons thus apart from others. Upon the first cause of action he claims damages in the sum of $10,225.65, and upon the second cause of action damages in the sum of $1,000. To his complaint respondent interposed a demurrer, which was sustained as to both causes of action. Appellant elected to stand upon said complaint; whereupon the action was dismissed. From the judgment of dismissal he appeals to this court.

We will first address ourselves to a consideration of the first cause of action alleged. It is contended by respondent that a municipal corporation is not liable for damages occasioned by or to firemen while engaged in their line of duty. In the case of Lawson v. Seattle, 6 Wash 184, 33 P. 347, this court said: 'It is a well-known fact that the apparatus used by a fire company is not under the control of the city, but is under the special control and inspection of the fire company, and such city can therefore no more be held for the defective condition of the apparatus than it can for its negligent operation by the company.' In the case of Hafford v. City of New Bedford, 16 Gray 297, the Supreme Court of Massachusetts said: 'The members of the fire department of New Bedford, when acting in the discharge of their duties, are not servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as officers of the city charged with the performance of a certain public duty or service; and no action will lie against the city for their negligence or improper conduct while acting in the discharge of their official duty.' In the case of Wheeler v. City of Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368, the Supreme Court of Ohio, speaking of the authority of municipal corporations to establish fire companies and procure engines and fire extinguishing apparatus, said: 'But the powers thus conferred are in their nature legislative and governmental; * * * and for any defect in the execution of such powers the corporation cannot be held liable to individuals. Nor is it liable for neglect of duty...