Moore v. City of Bloomington
| Decision Date | 06 June 1911 |
| Docket Number | No. 7,262.,7,262. |
| Citation | 95 N.E. 374,51 Ind.App. 145 |
| Parties | MOORE v. CITY OF BLOOMINGTON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lawrence County; Jos. B. Wilson, Judge.
Action by Josephine Moore, by next friend, Joseph C. Moore, against the City of Bloomington. Judgment for defendant. Plaintiff appeals. Reversed, with directions for new trial.
Miers & Corr, for appellant. Duncan & Batman and Martin & Pearson, for appellee.
By this action, appellant, Josephine Moore, a minor, by her next friend, seeks to recover damages from the city of Bloomington for personal injuries sustained by her while attending a public exhibition of fireworks given in the streets of said city, under the control and direction of a committee of the labor unions, as a part of the Labor Day celebration held in the city of Bloomington on the 3d day of September, 1906. The common council of the city had, prior to that date, passed and entered of record an order granting to said laborunions the free use of the streets for the purpose of holding their celebration, and further granting them the privilege to give a display of fireworks in the streets in the evening. The display was given in the street near the courthouse square in the presence of a large crowd of people. The appellant, Josephine Moore, was present, and, while standing in the street near the platform from which the fireworks were being discharged, she was struck in the face by a skyrocket and seriously injured. It is alleged that the rocket which struck and injured the appellant was negligently ignited and discharged by those in charge of the display. The complaint on which the case was tried consisted of two paragraphs, the first and third; a demurrer having been sustained to the second. The averments of the first and third paragraphs are similar, except that in the third the negligent acts and conduct of those in charge of the display were particularly described. After hearing the evidence, the trial court directed the jury to return a verdict in favor of the defendant, and the question here presented is whether, under the facts shown by the pleadings and proof, a case was made out which should have been submitted to the jury for determination.
The sufficiency of the complaint was questioned below by demurrer, and the action of the court in overruling the demurrer to the first and third paragraphs of complaint is presented here by assignment of cross-error. The appellant assigns as error that the court erred in directing a verdict for appellee and also in overruling the motion for a new trial. As the questions presented by the several assignments of error can be all determined by the application of the same legal principles, it will not be necessary to discuss them separately.
The precise question here presented has never been decided by either the Supreme or Appellate Court of this state, and the decisions of the courts of other states are not entirely uniform. It is therefore proper and necessary to consider and apply the principles of law governing the liability of cities for torts under circumstances similar to those involved in this case.
The courts have uniformly held that a city is not liable for a failure to exercise powers of a purely governmental character. They are not liable for a failure to provide adequate appliances for extinguishing fires, or for failure to furnish a sufficient police force, or for a failure to enact proper ordinances, or for a failure to properly enforce the laws of the state or the ordinances of the city enacted for the protection of the lives and property of its citizens. Such powers are governmental and discretionary, and the failure to exercise them cannot be made the basis of an action for damages. City of La Fayette v. Timberlake, 88 Ind. 330;Robinson v. City of Evansville, 87 Ind. 334, 44 Am. Rep. 770;Brinkmeyer v. City of Evansville, 29 Ind. 187; 2 Dillon, Munic. Corp. § 754; Griffin v. Mayor, etc., 9 N. Y. 456, 61 Am. Dec. 700;Hill v. Board, 72 N. C. 55, 21 Am. Rep. 451; Rivers v. City Council, 65 Ga. 376, 38 Am. Rep. 787; City of Logansport v. Wright, 25 Ind. 512;Mills v. City of Brooklyn, 32 N. Y. 489;Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332;Kennedy v. Lansing, 99 Mich. 518, 58 N. W. 470.
By an application of this principle, the courts have held that a city is not liable for damages caused by persons while making use of the streets for an illegal and unauthorized purpose. The failure of the city in such case to prevent or suppress such illegal use of the streets does not render it liable to respond in damages. So, it has been decided that a city is not liable for damages caused by persons coasting in a street in violation of a city ordinance. City of La Fayette v. Timberlake, supra. The fact that the unauthorized and illegal act is carried on openly and in the presence of the police officers of the city does not change the application of the rule. Faulkner v. City of Aurora, 85 Ind. 130, 44 Am. Rep. 1. In the absence of a statute, a city is not liable for injuries to person or property caused by the acts of a mob which the city authorities failed to suppress.
It is clear, from an application of this principle, that a city cannot be held liable for an injury to person or property caused by the explosion of fireworks in its streets by a person or society of persons without the authority, consent, or license of the city. If the pleadings and proof disclosed such a case here, there would be no difficulty in reaching a decision; but in this case it appears from the pleadings and the evidence that the common council of the city of Bloomington, in response to a request of a committee of the labor unions of said city, made and entered of record an order granting to said labor unions the free use of the streets of said city for their Labor Day celebration, including a display of fireworks at night, and that the exhibition of fireworks at which appellant received her injuries was held by the labor unions as a part of their celebration under the permission and license so granted by said city. We cannot, therefore, determine this case by the application of the principle just announced; but we are required to consider and determine the effect of the express permission and license given by said city, as bearing upon the question of its liability for damages resulting from such authorized display of fireworks. In considering this question, it is necessary to discuss briefly the duties of the city in reference to keeping its streets in a safe condition for use.
It is well settled that where a fixed, certain, and absolute duty of a purely ministerial character is imposed upon a city by statute, and means are provided whereby such duty may be discharged, it is under obligationto perform; and it will be held answerable in damages for its failure to perform, or for its negligent performance of such duty. By the application of this principle, cities in this state have been held liable for a failure to keep their streets in a safe condition for travel and for negligently permitting such streets to become obstructed or out of repair so as to be dangerous. City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166;City of Indianapolis v. Doherty, 71 Ind. 5;Town of Monticello v. Kennard, 7 Ind. App. 135, 34 N. E. 454;Lyon v. City of Logansport, 9 Ind. App. 21, 35 N. E. 128;City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119.
If a person, without the knowledge of the city and without license or authority from it, makes an excavation in a street or places an obstruction therein, whereby the condition of the street is made dangerous, the city is not liable for injury resulting from such dangerous condition, unless it appears that the city had either actual or constructive notice of such condition in time to have taken precautions to prevent the injury. In such a case, the only negligence that can be charged against the city is that it failed to take proper precaution to prevent injury after notice of the dangerous condition of the street. On the other hand, if the city by contract or license authorizes an excavation to be made in a street, or an obstruction to be placed therein, which from its character and location will necessarily or probably produce injury to those using the street unless precautionary measures are taken to prevent it, such city will be liable in damages to a person injured by reason of the want of necessary precautionary measures to make it safe. To render the city liable in such a case, it is not necessary to show that it had notice that the person who had placed the obstruction or made the excavation in its street pursuant to such authority or license had failed to guard it or to light it, or to take other precautions necessary to make it safe, and that after such notice the city had time to have taken such precautions before the injury occurred. The duty to see that such precautions are taken rests primarily upon the city, and it cannot absolve itself from such duty by delegating it to another. Park et al. v. Board of Com'rs, 3 Ind. App. 536, 30 N. E. 147;City of Indianapolis v. Marold, 25 Ind. App. 428, 58 N. E. 512; Dillon on Municipal Corporations, § 1027.
In the case last cited the city of Indianapolis had let a contract for lowering a bridge. The execution of the work contemplated by the contract necessarily resulted in a condition of the street which would be dangerous unless properly lighted or guarded. The contractor failed to properly light or guard the place, and the city was held liable to the person injured by reason of the defect so created. The court held in this case that, as the improvement contracted for contemplated the creation of a condition of the street which was dangerous unless precautions were taken to make it safe, the duty primarily rested on the city to see to it that such precautions were taken, and that notice to...
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