Walters v. City of Carthage

• Decision Date: 24 July 1915
• Docket Number: 3746
• Citation: 36 S.D. 11,153 N.W. 881
• Parties: ELIZABETH M. WALTERS, Plaintiff and respondent, v. CITY OF CARTHAGE, Defendant and appellant.
• Court: South Dakota Supreme Court

36 S.D. 11, 153 N.W. 881 (1915)

ELIZABETH M. WALTERS,

Plaintiff and respondent,

v. CITY OF CARTHAGE,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Miner County, SD

Hon. Alva E. Taylor, Judge

#3746--Affirmed

Caldwell & Baldwin

Attorneys for Appellant.

C. A. Kelley, James Byrnes

Attorneys for Respondent.

Opinion filed July 24, 1915

McCOY, P. J.

Action to recover for personal injury alleged to have been sustained by a three year old son of plaintiff as the result of the negligent construction and maintenance of a certain door upon the fire engine house of defendant, which door fell upon and injured said child. There was verdict and judgment for plaintiff, and defendant appeals, assigning errors at law occurring on the trial, and insufficiency of the evidence to justify the verdict.

Plaintiff's complaint, among other things, in substance, contained the allegation that near where plaintiff resides in the town of Carthage is the town engine house or building where the fire apparatus is kept; that said building fronts on one of the main streets; that on the front of said building and adjacent to the public sidewalk is a heavy door, or construction used for a door, to close the front of said building, and also used as a bridge for running the fire apparatus over across the side walk; that said door, when opened, falls down directly across and upon the sidewalk; that said door, by reason of the carelessness and negligence and the insecure way the same was fastened up, was a nuisance and a menace to the safety of people using the sidewalk in front of said building, and that defendant and its officers, by the exercise of ordinary care, might have known and prevented said dangerous condition of said door; that about February, 1913, plaintiff's boy was lawfully upon the sidewalk in front of said engine house, and through no fault, carelessness, or negligence of plaintiff or said child, the said heavy door, not being securely fastened, fell upon and crushed and bruised and injured said child. At the beginning of the trial defendant objected to the introduction of any evidence under the complaint on the ground that the same does not state facts sufficient to constitute a cause of action, in this: That it appears that the injury complained of was the result of negligence and improper condition of an engine house or building where fire apparatus was kept by defendant, and that these were governmental duties imposed upon defendant for which it would not be liable for damages, even though there might be negligence shown against defendant, its officers and agents. This same question was raised by objection and exceptions to testimony and by exceptions to instructions of the court. On all these objections the court ruled adversely to appellant. Appellant now contends that such rulings were error. We are of the view that the contention is not well grounded.

It is well settled that municipal corporations have certain powers which are discretionary or judicial in character, and also certain powers which are ministerial. They will not be held liable in damages for the...