Mayor & City Council of Nashville v. Brown

• Decision Date: 31 December 1871
• Citation: Mayor & City Council of Nashville v. Brown, 56 Tenn. 1 (Tenn. 1871)
• Parties: MAYOR AND CITY COUNCIL OF NASHVILLE v. BERRY H. BROWN.
• Court: Tennessee Supreme Court

56 Tenn. 1

MAYOR AND CITY COUNCIL OF NASHVILLE

v.BERRY H. BROWN.

Supreme Court of Tennessee.

December Term, 1871.

FROM DAVIDSON.

Appeal in error from the judgment of the Law Court, January Term, 1871.JOSEPH C. GUILD, J.

JOHN LELLYETT for appellant.

T. T. SMILEY, BATE & WILLIAMS for appellee.

NICHOLSON, C. J., delivered the opinion of the Court.

In 1867, Berry H. Brown was walking from the City Hall in Nashville, down North Market Street, on the West side, in the direction of his home, when he stepped into a pile of sand on the sidewalk and sank suddenly down into it.In his effort to save himself, by catching with his other leg, he broke his hip bone in the socket.It was in the night; it was dark, and there was no light or guard of any kind to warn him that the pile of sand was there, or that there was any danger.

The pile of sand was from one to three feet high; that is, some of it was a foot high and some three feet deep.By the fall, Brown, who was, at the time, sixty-seven years of age, after much suffering became a cripple, being compelled to go on crutches.Before the accident he was a stout, able-bodied man, a carpenter by trade, and dependent on his labor for the support of himself and family.Brown sued the Mayor and City Council, and on the trial in the Circuit Court, at the January Term, 1871, the jury returned a verdict for the plaintiff, and assessed his damages at $9,500.Defendant moved for a new trial, which was overruled, on condition that the plaintiff would remit $2,250, which was done, and judgment rendered for $7,250, from which the defendant has appealed in error.

The error mainly relied on for reversal, is assigned upon the charge of the Circuit Judge, and specially the following portion thereof:

“It is the duty of the corporation to use care and vigilance in the selection of agents, servants and contractors, in making improvements; to retain the requisite degree of control and superintendence over them in the performance of their duty; and to enforce such measures of vigilance and care as will guard against exposure to injuries of any kind.”

This charge was made in view of the fact that a contract was proven to have been made for the repair of the street, of which the following is a copy:

“Articles of agreement made and concluded this 10th of September, 1867, between Jacob Geiger, contractor and the City of Nashville, by its duly authorized agents, W. Matt Brown, and Geo. S. Kinney, chairman of street committee, whereby it is covenanted and agreed as follows:

First.Said Jacob Geiger hereby covenants and agrees to construct stone curbing, guttering, and brick sidewalks, at such points as the chairman of the street committee may order, constructing the same in a thorough and workmanlike manner, and under the directions of the City Engineer, and to the satisfaction of the Street Committee.

Second.The City of Nashville, for and in consideration of the faithful execution of the above-mentioned work by said Geiger, hereby covenants and agrees to pay said Geiger the following prices for the different descriptions of work executed by him, as follows,” etc.

Geiger, it appears by the evidence, had employed John King to lay the brick in repairing the sidewalk where Brown was injured.It does not appear whether Geiger or King furnished the sand.King says: “I left the pavement about an hour by sun, the evening of the accident.A colored man was doing the work for me.He got out of brick that evening.He lacked four or five feet, may be a little more or less, of finishing the sidewalk.I got the brick and had them hauled there that evening, but was not there when they were unloaded.I put up no guard ropes nor lights.I always told the men to put up guards.It was my habit to put up barriers, but put up none that night.The load of sand was thrown on the edge of the sidewalk after witness left the place that evening.”

James Roberts was employed by King in laying pavements.He says: “There was a space of twenty or thirty feet to lay in all--about a foot and a half, I suppose, was left that evening not laid.A load of sand was thrown on the sidewalk that evening about quitting time, and was loose, just as thrown from the wagon; and the pile of it was from one to three feet high.”He says, also: “About quitting time, a load of brick came and we unloaded that.I was the last of the hands that was on the street, and when I left, about dark, there was no rope, plank, or other barrier,” etc.He concludes: “The way we left the sidewalk it was dangerous; there was danger not only of breaking one's leg, but also his neck.”

It was in view of their evidence, that is, that the improvement was being made under a contract with Geiger, that the Circuit Judge charged that it was the duty of the corporation to use care and vigilance in the selection of agents, servants, or contractors, in making the improvements.The objection taken to the charge is, that the Judge instructed the jury that it was the duty of the corporation to use care and vigilance in selecting contractors to make improvements, as well as agents and servants.

It is not denied, nor can it be, that a municipal corporation is responsible for injuries arising from the negligence or wrongful acts of its agents or servants: Mayor, etc., of Memphis v. Lasser, 9 Hum., 761.But it is insisted that the same rule does not apply when the corporation resorts to contractors for making improvements, instead of employing its own agents and servants, and this presents the main question in the present case.

It is proper for us to state in this place the result of the decisions in our State, so far as they may be of service in solving the question now before us.

In Humes v. Mayor and Aldermen, 1 Hum., 403, it was held, that a municipal corporation for the government of a town or city, is the proprietor of the streets, which it holds as easements, in trust, for the benefit of the corporation, and which it has the power to grade, pave, or otherwise improve.In the case of the Mayor and Aldermen of Memphis v. Lasser, 9 Hum., 760, the court said: “This charter is a special franchise for the private benefit and emolument of the city of Memphis, although the public may no doubt be benefited by it.”Again: “Municipal corporations are likewise liable for the wrongful acts and neglects of their servants and agents, upon the same grounds, in the same manner, and to the same extent, as natural persons: Ang. & Ames, 250;4 Serg. & Rawl, 6;3 Hill, 531;19 Pickering, 513.”The court then proceeded to add: “It is the duty of the corporation to exercise proper care and prudence in the selection and employment of suitable agents and servants; to retain the requisite degree of control and superintendence over them in the performance of their...