Rollow v. Ogden City

• Decision Date: 05 February 1926
• Docket Number: 4320
• Court: Utah Supreme Court
• Parties: ROLLOW v. OGDEN CITY

243 P. 791

66 Utah 475

ROLLOW v. OGDEN CITY

No. 4320

Supreme Court of Utah

February 5, 1926

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by Alvin J. Rollow against Ogden City. From a judgment of dismissal, plaintiff appeals.

REVERSED and REMANDED, with directions.

Chez &amp Douglas, of Ogden, for appellant.

T. J Maginnis and L. J. Holther, both of Ogden, for respondent.

FRICK, J. GIDEON, THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

The plaintiff instituted this action in the district court of Weber county against the defendant to recover damages for personal injuries which plaintiff alleges he sustained through the negligence of the defendant. In his complaint plaintiff in substance alleged: That on the 24th day of August, 1924, the defendant, a municipal corporation, maintained and operated a duly equipped fire department; that on that day the employees of the defendant who were employed in said fire department negligently and carelessly and at a great and unlawful rate of speed operated one of the fire trucks used in said fire department on one of the principal streets of defendant, and carelessly and recklessly ran said fire truck against and over plaintiff while he was lawfully traveling on said street at an intersection thereof, and by reason of the collision aforesaid plaintiff sustained serious, painful, and permanent injuries. It was also alleged that the street in question at said intersection was in a defective condition, describing the same. The manner in which the fire truck was driven, the purpose for which it was driven on the street at the time aforesaid, the speed at which it was driven, and the facts leading up to the collision and the character of the injuries, together with certain sections of the ordinances of defendant, were all fully set forth in the complaint.

A demurrer to the complaint was interposed by the defendant, which was overruled. The defendant then filed its answer, in which it also set forth the facts concerning the driving of the fire truck at the time of the accident, the purpose for which it was so driven, and that the defendant maintained the fire department in its governmental capacity. It also made proper averments respecting the alleged defect in the street, denied the alleged negligence, and set up contributory negligence on the part of plaintiff as a defense.

Upon substantially the foregoing issues the case proceeded to trial. The plaintiff, in substance, proved: That the defendant, pursuant to the statutes of this state, maintained a duly equipped fire department composed of a central station with several substations; that the central station was located on Grant avenue about one block south of the intersection where the accident occurred; that substation No. 3 is located on Washington avenue and Ninth street, some considerable distance north of the intersection in question; that in case of a fire call, when the fire trucks are taken out from the central station in response to such a call, other trucks are at once taken from some other station to the central station so that the central station would always be supplied with a fire truck or trucks in case of another fire call; that on the day in question the fire apparatus was taken from the central station in response to a fire call, and the truck in question here was, at the time, being driven from what is designated as substation No. 3 to the central station for the purpose just stated; that the defendant, several years prior to the date of the accident, placed what is called a cement 'marker" or "button" in the center of the intersection aforesaid; that in placing the said marker defendant had caused a "hole" or excavation to be made in the center of said intersection, in which said marker was "anchored" or placed; that the hole or excavation was several inches deep, and the marker was about 12 inches in diameter and the top of which was globular in form and extended 3 1/2 or 4 inches above the surface of the street when in its proper place; that when said marker was originally placed in the intersection it was fastened or anchored in said hole or depression and it was intended to remain stationary; that for a long time prior to the accident--some witnesses placed the time as several years--the marker had become loose and at times was lifted or forced from the hole or depression, and was "floating" around on the surface of the intersection; that at the time of the accident the fire truck in question here was being driven from substation No. 3 to station No. 1 so as to be in readiness for another fire call should there happen to be one; that in approaching the intersection in question and in passing over it the truck was being driven at a rate of speed of from 40 to 45 miles an hour; that in passing over the intersection the truck was being driven a little to the left of the center of the street although there was ample space to pass to the right of the center; that in passing over the intersection the marker or button aforesaid was out of place, and was some 6 or more feet distant from and to the left of the place where it should have been in the center of the intersection; that in passing over the intersection the right front wheel of the fire truck went into the hole or depression where the marker should have been, and immediately thereafter the left front wheel of the truck struck the marker, which was several feet from and to the left of the hole; that by reason of the right front wheel going into the hole or depression in the street and the left front wheel immediately thereafter striking and passing over the loose marker the truck was caused to sway violently from side to side to the extent, the witnesses who saw the accident say, that the driver lost control of the truck; that at that time the plaintiff was passing from the right to the left side of the intersection and had passed beyond the center of the street when the truck swayed to the left and struck him, causing the injuries in question. It is also made to appear that the plaintiff saw the truck approaching the crossing for some distance, but that because of its great speed and violent swaying he was unable to get out of its way. We have limited the foregoing statement to the facts deemed necessary to this decision, and have omitted many others although material to a final trial of the case.

At the conclusion of plaintiff's evidence the defendant interposed a motion for a nonsuit, which was granted by the court. A judgment dismissing the action followed, from which the plaintiff appeals and assigns error upon the ruling of the court granting the motion for nonsuit and in entering the judgment of dismissal.

We have carefully read the evidence produced by the plaintiff, and have examined the record of the proceedings in the court below, with a view to ascertaining upon what ground or theory that court proceeded in granting the nonsuit. Not having been able to discover any specific reason from any statement appearing in the record, we must assume that the nonsuit was granted upon the ground that the defendant justifies the granting thereof in this court, namely, that the defendant is not liable for the negligent acts of its employees who serve in its fire department while such employees are engaged in the performance of any duty coming within the scope of such department, or for acts incidental thereto. It is more convenient for us to first consider defendant's contentions in support of the court's ruling and judgment.

The defendant contends that in maintaining and operating its fire department it performs governmental rather than merely corporate functions, and for that reason the doctrine of respondeat superior does not apply to the acts of the men employed in its fire department. In support of its contention, among others, defendant cites and relies upon the following authorities: Aldrich v Youngstown, 140 N.E. 164, 106 Ohio St. 342, 27 A. L. R. 1497; O'Daly v. City of Louisville, 162 S.W. 79, 156 Ky. 815, 49 L. R. A. (N. S.) 1119; Gaetjens v. City of New York, 116 N.Y.S. 759, 132 A.D. 394; Higgins v. City of Superior, 114 N.W. 490, 134 Wis. 264, 13 L. R. A. (N. S.) 994; Engel v. City of Milwaukee, 149 N.W. 141, 158 Wis. 480; O'Connell v. Merchants' Police Dist. Tel. Co. , 180 S.W. 845, 167 Ky. 468, L. R. A. 1916C, 508; Bowling Green v. Rogers, 134 S.W. 921, 142 Ky. 558, 34 L. R. A. (N. S.) 461; Smith, Adm'r, v. Commissioners of Sewerage of Louisville, 143 S.W. 3, 146 Ky. 562, 38 L. R. A. (N. S.) 151; Edson v. City of Olathe, 105 P. 521, 107 P. 538; Gillespie v. City of Lincoln, 52 N.W. 811, 35 Neb. 34; Gregg v. Hatcher, 125 S.W. 1007, 94 Ark. 54, 27 L. R. A. (N. S.) 138, 21 Ann. Cas. 982. A large number of cases in which it is held that in maintaining and operating fire departments cities discharge governmental functions, and that in the absence of an express statute to the contrary they are not liable for the negligent acts of the men employed in such departments, are collated in 9 A. L. R. 143, and in 33 A. L. R. 688, to which cases we especially refer the reader. This court is committed to the doctrine that in discharging certain duties municipalities act in a governmental capacity and hence are immune against actions for negligence unless the negligence complained of relates to the maintenance of a nuisance. In other words, it is held that, where municipalities act in a governmental capacity, the doctrine of respondeat superior, within the limits just stated, does not apply. See Gillmor v. Salt Lake City, 89 P. 714, 32 Utah 180, 12 L. R. A. (N. S.) 537, 13 Ann. Cas. 1016. The foregoing case is followed in Sehy v. Salt Lake City, 126 P. 691, 42 L. R. A. (N. S.) 915, 41 Utah...