Mayor v. Lasser

• Decision Date: 30 April 1849
• Citation: 28 Tenn. 757
• Parties: MAYOR AND ALDERMEN OF MEMPHIS v. LASSER.
• Court: Tennessee Supreme Court

28 Tenn. 757

MAYOR AND ALDERMEN OF MEMPHIS

v.LASSER.

Supreme Court of Tennessee.

April Term, 1849.

This is an action on the case by Lasser against the mayor and aldermen of Memphis, for damages. There was a verdict and judgment (Dunlap, presiding) for the plaintiff for $5,000.

The defendants appealed.

V. D. Barry, for plaintiffs in error.

E. M. Yerger, for defendant in error.

MCKINNEY, J., delivered the opinion of the court.

This is an action on the case brought to recover damages for an injury to the person of the defendant in error, occasioned by falling into a well or cistern which the plaintiffs in error had ordered and procured to be dug on the sidewalk, at the corner of two of the public and most frequented streets of Memphis.

It appears that the cistern occupied above two-thirds of the sidewalk; that it was from twenty to twenty-five feet deep; and that it was suffered to remain uncovered, day and night, without guard or enclosure, and also without light or signal at night, or other precaution to warn passengers of the danger to which they were exposed; in this condition it remained for several weeks. The work was performed by an agent or servant of the corporation, employed by a committee of the board to do the same. The defendant in error was a stranger in the city; and in passing to his lodgings after night, not knowing of the cistern, and the night being dark, he fell therein, and was thereby so greatly injured as to be disabled and rendered a cripple for life. The case was submitted to the jury upon the issue of not guilty; the verdict was in favor of the plaintiff in the action for $5,000 damages; and a new trial being refused, an appeal in the nature of a writ of error was prosecuted to this court. The substance of the charge of the court is summed up in the following extract, viz.: “If it appear in evidence that the defendants employed an agent to dig the cistern upon the corner of Main and Jefferson streets, upon the sidewalk, and that in digging the cistern he performed his work in a manner so negligently, unskilfully, and carelessly as to endanger the lives of those accustomed to walk the streets, or of strangers who might pass thereon, and that the agent of the defendants acted within the scope of his authority, and that the injury complained of by the plaintiff was occasioned by the carelessness and unskilfulness of the defendants' agent, without any fault or negligence of the plaintiff, your verdict should be for the plaintiff,” etc. The correctness of the general principles laid down in the foregoing charge is not seriously questioned. The supposed error is in the omission of the court to submit a further enquiry to the consideration of the jury, namely whether the work in question was designed to be for the convenience and benefit of the public, or for the private emolument of the corporation, as a means of increasing its revenue, it being assumed that if it were of the former character, the corporation will not be liable in this action. In this there was no error. If by the public is meant the corporators or inhabitants of Memphis, no such distinction exists as that attempted to be made.

All the powers conferred upon a corporation for the local government of a town or city are, in judgment of law, for the private benefit of such corporation, although the public at large may also derive benefit therefrom. And whether the object of a given improvement be to confer a direct benefit or convenience upon the inhabitants of the corporation, as to furnish water facilities or the like, or whether it be to swell the revenues of the corporation, is wholly immaterial; the principle governing the liability of the corporation is precisely the same in both cases. And it is the province of the court to construe and interpret the charter of a corporation, to determine the nature and extent of the...