Weller v. City of Burlington
| Decision Date | 07 February 1888 |
| Citation | 12 A. 215,60 Vt. 28 |
| Parties | RALPH E. WELLER v. CITY OF BURLINGTON |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1887
TRESPASS on the case. Plea, general issue. Trial by court September Term, 1886, Chittenden County, TAFT, J., presiding. Judgment for the plaintiff. Reversed. The case appears in the opinion.
Judgment reversed and judgment for the defendant.
POWERS, J., was absent.
W. L. Burnap, H. Ballard and Robert Roberts, for the defendant.
This is an action on the case to recover for injuries received by the plaintiff while travelling on Main Street in the defendant city, by being run into by a sled on which some persons were coasting down the street.
The charter confers upon the city authority over its streets, and makes it its duty to keep them in suitable and sufficient repair, but imposes no greater duty in this behalf than is imposed upon towns in respect of their highways. It also provides for the raising of money for the performance of this duty, and empowers the city to prevent the practice in its streets of any amusements that have a tendency to injure or annoy persons passing thereon, or to endanger the security of property.
At the time in question there was an ordinance in force, forbidding under penalty coasting on any of the streets and highways of the city except such as the mayor and the board of aldermen should designate for that purpose, and Main Street had not been thus designated, so that coasting thereon was unlawful; and constables and all police officers were especially directed by the ordinance to see that its provisions were enforced.
The charter makes the mayor the chief executive officer of the city, and charges him with the duty of using his best efforts to see that the laws and the city ordinances are enforced, and that the duties of all subordinate officers are faithfully performed.
On the evening the plaintiff was injured, several persons others than those whose sled injured him were coasting down Main Street; and the street had been similarly used by many persons, mostly residents of the city, for three or more evenings within the last ten days; and the practice of coasting on the street had become and was a dangerous public nuisance. The use of the street for coasting was all the while known to the mayor and the other officers of the city, or would have been known to them by the exercise of reasonable diligence on their part, and was also known to the greater part of the substantial citizens and taxpayers of the city, and approved of by them. It was also expressly approved of by a majority of the board of aldermen, though not by official action, and the minority of the board did not object to it.
A few days before the accident, the mayor publicly designated certain streets for coasting and sliding, and gave notice that coasting and sliding on all other streets of the city were forbidden by ordinance; but this was the only official action taken for its enforcement, and it is found that the city was negligent in this behalf; and the plaintiff claims that as the city is a municipal corporation proper as distinguished from a quasi or other public corporation, it is liable for injury resulting from such negligence.
It is said that this case is distinguishable from all others on this subject, in that here a majority of the citizens and taxpayers approved of the practice of coasting. But this makes no legal difference; for a city cannot be affected in such matters by the individual action of its citizens, any more than a town can be by such actions of its citizens; and it has always been held that a town cannot be thus affected.
It is true that there is a difference between cities, which are voluntary corporations existing by special charters, and towns, which are involuntary corporations, with privileges and duties more limited and restricted than those of cities but does that difference go to the extent claimed here? for it is certain that a town would not be...
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