Powell v. Fenton

• Decision Date: 29 July 1927
• Docket Number: No. 18.,18.
• Citation: 214 N.W. 968,240 Mich. 94
• Parties: POWELL v. VILLAGE OF FENTON.
• Court: Michigan Supreme Court

240 Mich. 94

214 N.W. 968

POWELL

v.VILLAGE OF FENTON.

No. 18.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Genesee County; Edward D. Black, Judge.

Action by Lydia Powell against the Village of Fenton. Judgment for plaintiff, and defendant brings error. Reversed, without a new trial.

Argued before the Entire Bench.

George W. Cook, of Flint, for appellant.

C. A. Withey, of Flint, for appellee.

SNOW, J.

The plaintiff was injured by tripping over a fire hose across the sidewalk on Caroline street in the village of Fenton. The hose had been placed there by the village fire department in its attempt to extinguish a fire in a store building on Leroy street some half block away. The streets in the vicinity of the accident were well lighted and in good condition of repair. Plaintiff relies solely upon section 4584, C. L. 1915, requiring municipal corporations to keep their streets reasonably safe and fit for travel, claiming that the laying of the hose by the village fire department across the sidewalk, in its effort to put out a fire, constituted a violation of this statute, rendered the street unsafe, and the village liable in damages. She was permitted to recover, and defendant brings error.

In Brink v. City of Grand Rapids, 144 Mich. 474, 108 N. W. 431, this court has held:

‘Without doubt, according to the weight of authority, a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to the extinguishment of fires.’

In accord with this rule it is the claim of defendant that, in laying this piece of hose by its fire department in an attempt to stop a fire, the village was acting in a governmental or sovereign capacity, and is not liable for injuries to persons or property resulting therefrom.

We understand the claim of plaintiff, as stated by her counsel, to be that this proposition is not in the case, and that, even though the village were in fact at the time of the injury in the performance of a governmental function, it was not excused from the duty imposed upon it by statute to keep its streets reasonably safe for travel; that is, we are asked to hold that, although the municipality was acting in a governmental capacity in attempting to extinguish a fire, and therefore was not liable for the negligent acts of members of its fire department, still it is bound to lay its hose from the hydrant to the fire so that it will not, even temporarily, leave its walks unsafe for public travel, and that its failure to do so would render it liable.

Defendant, unquestionably, at the time of the accident, was performing a governmental function in fighting the fire. Its firemen were acting for the common good. To extinguish the fire they must necessarily run their hose from the burning building to the nearest hydrant. This, as in almost every instance, required the crossing of a sidewalk and a street. That such is the usual fact is a matter of common knowledge, and one expects it on approaching the scene of a fire. If this necessary fire-fighting apparatus...