Russell v. City of Tacoma

• Decision Date: 26 January 1894
• Parties: RUSSELL v. CITY OF TACOMA.
• Court: Washington Supreme Court

35 P. 605

8 Wash. 156

RUSSELL v. CITY OF TACOMA.

Supreme Court of Washington

January 26, 1894

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by John Russell against the city of Tacoma for personal injuries caused by defendant's negligence. From a judgment for defendant, plaintiff appeals. Affirmed.

Heilig & Hartman and Wiley & Bostwick, for appellant.

F. H Murray, City Atty., and Doolittle & Fogg, for respondent.

ANDERS J.

The city of Tacoma is a city of the first class. Its charter was framed and adopted in accordance with the provisions of the act of the legislature entitled "An act to provide for the government of cities having a population of twenty thousand or more inhabitants, and declaring an emergency," approved March 24, 1890. Cities organized under this act are empowered to "lay out, establish open, alter, widen, extend, grade, pave, plank, establish grades, or otherwise improve streets, alleys, avenues sidewalks, wharves, parks, and other public grounds, and to regulate and control the use thereof;" and these provisions of the statute are incorporated into, and are a part of, the city charter. By an act of congress approved December 17, 1888, there was granted to the city of Tacoma a license to occupy and control for the purposes of a public park, for the use and benefit of the citizens of the United States, and for no other purposes whatever, a certain described tract of land known as "Point Defiance Park." This license is subject to the condition expressed in the act that the United States may take possession of and occupy said land, or any part thereof, for military or other purposes, whenever the proper officers of the United States may see fit to do so. The charter of the city of Tacoma provides for a board of park commissioners, consisting of five members, to be appointed by the mayor and confirmed by the city council; and it is made the duty of the board, subject to such rules and regulations as the city council may by ordinance provide, among other things, to take charge of and exercise control over all parks belonging to the city; to make report to the city council, from time to time, regarding the condition of the parks; and to recommend appropriations by the council for the improvement of the parks, and, when such appropriations have been made, expend the same in such improvements, but no member of said commission shall have power to create any debt, obligation, claim, or liability except with the express authority of said commission, conferred at a meeting thereof duly convened and held; to make such rules and regulations in regard to the use of the parks as shall best subserve the interests of the public; and, generally, to do all things necessary and proper to secure for the public the free use and enjoyment of said parks. While the board of park commissioners were in possession of Point Defiance park, and were improving the same for park purposes, appellant was injured by an explosion of giant powder and dynamite, which occurred in a building erected thereon by the commissioners. It appears that, at the time of the explosion, the appellant was a laborer, under the control of a foreman employed by some one connected with the board of park commissioners, and that the powder and dynamite which exploded were stored in a building used for the purposes of a blacksmith shop, and for storing tools. The blacksmith was engaged in sharpening tools, and the explosives were ignited by sparks from his forge or anvil. This action was brought to recover damages for injuries to the person and property of the appellant, alleged to have been caused by the carelessness and negligence of the city in thus storing dangerous explosives in the place above mentioned. The court below held that the city was not liable, and dismissed the action, and plaintiff appeals.

The only question necessary to be determined is whether the city is liable for malfeasance or misfeasance of its officers while employed in the prosecution of a public work of the character of the one under consideration. It is contended by the learned counsel for the appellant that the board of park commissioners, while engaged in this work, were but agents of the city, and that the work itself was but a private enterprise, undertaken by the city for its own benefit; and if this be true, there is no doubt that the city is liable to the same extent that a private corporation or individual would be liable under the same circumstances. As supporting the appellant's contention that the improvement of Point Defiance park was an improvement of mere local concern, affecting merely the interests of the municipality, we are cited to the case of State v. Schweickardt, decided by the supreme court of the state of Missouri, and reported in 19 S.W. 47. It appears from an examination of this case that the city of St. Louis was the owner of Forest park, and, under the power given it by law, was attempting to lease a portion of it for the sale of intoxicating liquors and other refreshments at the park. Proceedings were instituted by the attorney general, in the name of the state, to prevent the city from so...