Peterson v. City Of Wilmington

• Decision Date: 18 March 1902
• Citation: 130 N.C. 76,40 S.E. 853
• Court: North Carolina Supreme Court
• Parties: PETERSON v. CITY OF WILMINGTON.

40 S.E. 853

130 N.C. 76

PETERSON

v.CITY OF WILMINGTON.

Supreme Court of North Carolina.

March 18, 1902.

MUNICIPAL CORPORATIONS—EXTINGUISHMENT OF FIRES—GOVERNMENTAL DUTY—LIABILITY FOR NEGLIGENCE.

An employe of the fire department of a city cannot recover for injuries sustained by him while in its service; the powers and duties imposed on the department and on thecity as to the formation and regulation of a fire department for the extinguishment of fires being public and governmental, and not private and municipal. Douglas, J., dissenting.

Appeal from superior court, New Hanover county; Hoke, Judge.

Action by H. L. Peterson against the city of Wilmington. Judgment for defendant, and plaintiff appeals. Affirmed.

L. V. Grady and Stevens, Beasley & Weeks, for appellant.

Meares & Ruark, for appellee.

MONTGOMERY, J. The plaintiff sustained injuries to his person while in the service of the fire department of the defendant, the city of Wilmington, and brought this action for the recovery of damages. The charge on which the recovery is sought is that the defendant permitted, knowingly, a hose reel belonging to its fire department to be and remain in an unsafe and dangerous condition, and that on a sudden emergency (the breaking out of a fire) the chief of the fire department ordered the plaintiff to mount the reel and repair to the scene of the fire, and the plaintiff, in obeying this order, was hurt by a fall caused by the collapse of the reel. After the plaintiff had introduced his evidence, the defendant demurred ore tenus, and the court sustained the demurrer.

The defendant is empowered by its charter, in order to more effectually provide against damage and danger from fire, to establish and regulate a fire department, and the question to be determined is this: Are the powers and duties enjoined upon that department and upon the defendant, as to its formation and regulation for the extinguishment of fires, public and governmental, or are they merely private and municipal? If they are of the former character, —for the general good, —the defendant is not liable for either its own tort or negligence, or the negligence or tort of its officers or agents, unless there is some constitutional or legislative enactment which subjects it to liability therefor; and it is not contended by the plaintiff that there is any such enactment applicable to this case. If, however, the defendant was acting for its own benefit, and purely under its corporate or municipal powers, then, in case of negligence on its part, liability would ensue. Moffitt v. Asheville, 103 N. C. 237, 9 S. E. 695, 14 Am. St. Rep. 810; Prichard v. Commissioners, 126 N. C. 908. 36 S. E. 353, 78 Am. St. Rep. 679. We have no decided case in our Reports upon the particular question whether or not the laws governing the establishment and regulation of fire departments under the charter privileges and rights of our cities and towns, and the acts of those charged with the performance of those rights and duties, are legislative and governmental, or merely corporate and municipal. But in our investiga tion we have found numerous...