Niblock v. Salt Lake City

• Decision Date: 29 March 1941
• Docket Number: 6189
• Court: Utah Supreme Court
• Parties: NIBLOCK v. SALT LAKE CITY

111 P.2d 800

100 Utah 573

NIBLOCK v. SALT LAKE CITY

No. 6189

Supreme Court of Utah

March 29, 1941

Rehearing Denied November 12, 1941.

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

Action by George E. Niblock against Salt Lake City for injuries sustained in collision between automobile owned and operated by plaintiff, and a truck driven by an employee of the city. Judgment for plaintiff, and defendant appeals.

Reversed, and cause remanded, with instruction.

Bagley Judd, Ray & Nebeker, of Salt Lake City, for appellant.

Clarence M. Beck and Homer Holmgren, both of Salt Lake City, for respondent.

McDONOUGH Justice. MOFFAT, C. J., and LARSON and PRATT, JJ., WOLFE, Justice, concurring.

OPINION

McDONOUGH, Justice.

Appellant Salt Lake City has appealed from a judgment of the trial court based on a verdict rendered by a jury in favor of respondent in a suit by the latter against the city for damages on account of personal injuries alleged to have been suffered when a truck driven by an employee of the city ran into an automobile owned and operated by respondent.

The accident occurred near the intersection of Twenty-First South Street and Eleventh East Street in Salt Lake City. A heavily loaded truck driven by an employee of the city bumped into the rear of respondent's automobile. Following the accident Niblock contacted his insurance carrier who directed him to see a Mr. Harmon concerning the damage to his automobile. Mr. Harmon authorized Niblock to have his car repaired at the Warburton Garage. Upon calling for the car respondent was told by Mr. Warburton to sign a paper so that the latter could collect for fixing the automobile. Respondent did so and took his car. Later he presented a claim to Salt Lake City for personal injuries alleged to have been received in the accident but the claim was denied. This action ensued.

Appellant's fifty-one assignments of error may be grouped under three general heads: (1) Those dealing with the question of whether an incorporated city in this state is in any case liable for its negligent act done in the course of repairing its streets as well as for its failure to keep its streets in a reasonably safe condition for travel; (2) those having reference to a "release" signed by respondent when he obtained his car from the garage, which release it is claimed relieves the city from any liability on account of personal injuries suffered by respondent; and (3) those relative to the court's instructions to the jury.

Raising the first question are the allegations of the complaint to the effect that the truck which ran into respondent's car was loaded with materials which were "being then and there transported by said defendant for its use in repairing certain of the defendant's streets and highways," and the evidence adduced in support thereof. As stated in respondent's brief,

"It is undisputed that the truck, at the time of the accident, was being driven by one of defendant's employees employed in the street department and was being used in repairing one of the city's streets."

It is generally recognized throughout this country and in England that in the absence of a statute a municipality is not liable for the negligent acts of its servants while they are engaged in performing a governmental function or duty. Hewitt v. City of Seattle, 62 Wash. 377, 113 P. 1084, 32 L.R.A., N.S., 632; Hagerman v. City of Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A. L. R. 1110, 1117; City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150; Jones v. City of Sioux City , 185 Iowa 1178, 170 N.W. 445, 10 A. L. R. 474, 480; City of Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80, 47 A. L. R. 822, 829. And this court has many times adhered to this rule. Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714, 12 L.R.A., N.S., 537, 13 Ann. Cas. 1016; Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691, 42 L.R.A., N.S., 915; Alder v. Salt Lake City, 64 Utah 568, 231 P. 1102; Rollow v. Ogden City, 66 Utah 475, 476, 243 P. 791.

The authorities, however, are not harmonious as to whether the duty to construct and repair streets and highways is a governmental or a proprietary duty. In those jurisdictions where it has been held that the duty to repair or construct streets is a governmental one, a municipality, absent a statutorily imposed liability, is not liable for failure to repair its streets or for negligent repairs or construction.

After acknowledging the split of authority with respect to the nature of a municipality's duty to construct or repair its streets, respondent states in his brief:

"Coming to the question of the liability of a city for the negligence of its servants while engaged in repairing the streets, it will be seen that any conflict in the authorities on this question arises out of the way in which they answer the main question, namely, whether the duty to keep its streets in repair is a corporate or a governmental one. This proposition is clearly stated in the note in 6 L.R.A., N.S., 1090, which reads as follows:

"'It is apparent from an examination of these authorities that in the absence of statutory liability this conflict does not arise from any distinction between the liability of a municipality for injuries caused by a defective highway and those caused by the municipal employees while engaged in the construction or repair of the highway, but that these liabilities rest upon the same ground, namely, whether or not the construction and repair of highways constitute a public or governmental function, instead of a private or corporate function, and that the courts, in passing upon the liability of the municipality for injuries inflicted in the carrying on of the work of construction or repair divide in accordance with the manner in which this fundamental question has been determined in their respective jurisdictions. Thus in Colorado, where the construction and maintenance of highways is held to be a corporate, and not a public duty, the municipality is held liable for the negligent injury of a person engaged in digging gravel from a pit for use in repairing a highway. Town of Colorado City v. Liafe, 28 Colo. 468, 65 P. 630. And in City of Denver v. Peterson, 5 Colo. App. 41, 36 P. 1111, the municipality was held liable for injuries resulting from the frightening of a horse by a steam roller.'" Note to Barree v. City of Cape Girardeau, 197 Mo. 382, 95 S.W. 330, 6 L.R.A., N.S., 1090, 114 Am. St. Rep. 763. The authorities there cited support the text confined as it is to "the absence of statutory liability."

See, also, Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A., N.S., 1161; Hewitt v. City of Seattle, supra; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841; Burke v. City of South Omaha, 79 Neb. 793, 113 N.W. 241; Colwell v. City of Waterbury, 74 Conn. 568, 51 A. 530, 57 L.R.A. 218; City of Akron v. Butler, 108 Ohio St. 122, 140 N.E. 324; Strickfaden v. Green Creek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A. L. R. 1057.

This court is committed to the doctrine that the duty to repair or construct streets within its corporate limits is a governmental one and that in the absence of a statute no liability devolves on a municipality for the defective condition of its streets. Hurley v. Town of Bingham, 63 Utah 589, 228 P. 213; Hamilton v. Salt Lake City, 99 Utah 362, 106 P.2d 1028. As stated in Hurley v. Town of Bingham, supra [63 Utah 589, 228 P. 215]:

"The right to institute an action in this class of cases [injury caused by an obstruction] is purely statutory. It did not exist at common law, and therefore the conditions precedent fixed by the statute which confers the right must be complied with, or the action fails."

The provisions of our statutes which authorize a municipality to construct and repair its streets and which specify the manner in which claims should be presented against the city for its negligent failure to perform its duty are as follows:

15-8-8, R. S. U. 1933: "They [boards of commissioners and city councils of cities] may lay out establish, open, alter, widen, narrow, extend, grade, pave or otherwise improve streets, alleys, avenues, boulevards, sidewalks, parks, airports and public grounds, and may vacate the same or parts thereof, by ordinance."

15-8-11, R. S. U. 1933: "They may regulate the use of streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds, prevent and remove obstructions and encroachments thereon, and provide for the lighting, sprinkling and cleaning of the same."

15-7-76 R. S. U. 1933: "Every claim against a city or incorporated town for damages or injury, alleged to have been caused by the defective, unsafe, dangerous or obstructed condition of any street, alley, crosswalk, sidewalk, culvert or bridge of such city or town, or from the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert or bridge, shall within thirty days after the happening of such injury or damage be presented to the board of commissioners or city council of such city, or board of trustees of such town * * * stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the injury or damages, and stating, if known to claimant, the name of the person, firm or corporation, who created, brought about or maintained the defect, obstruction or condition causing such accident or injury * * *; such notice shall be sufficient in the particulars above specified to enable the officers of such city or town to find the place and cause of such injury from the description thereof given in the...