Weltsch v. Town of Stark
| Decision Date | 04 June 1896 |
| Docket Number | 9802--(115) |
| Citation | 67 N.W. 648,65 Minn. 5 |
| Parties | MARY A. WELTSCH v. TOWN OF STARK |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Brown county, Webber, J., denying a motion for a new trial. Affirmed.
Order affirmed.
Somerville & Olsen, for appellant.
No reason exists for the distinction made in Russell v. Men of Devon, 2 T. R. 667, between the liability of a municipal corporation proper and that of a quasi-municipal corporation such as defendant. Statutory towns possess substantially the same rights, privileges, and duties as do municipal corporations proper. See G. S. 1894, §§ 1775, 1777, 1778. At common law no action lay against municipal corporations for failure to repair or keep in order streets and highways. 2 Dillon, Mun. Corp. § 1000; 1 Thompson, Neg. 620. Yet, by reason of the duties imposed by their charters, they are liable for neglect to repair. O'Gorman v. Village of Morris, 26 Minn. 267, 3 N.W. 349; Shartle v. City of Minneapolis, 17 Minn. 284 (308).
The reasons assigned why towns are not liable for neglecting to act or to repair are (1) want of a corporate fund, and (2) that the town is part of the government of the state. The first does not apply in this state, where towns have authority and means to make repairs. The second does not apply in cases of direct acts of negligence. Quasi-municipal corporations are liable for direct acts of negligence. Dosdall v. County of Olmsted, 30 Minn. 96, 14 N.W 458; Peters v. Town of Fergus Falls, 35 Minn. 549 29 N.W. 586; Township of Blakely v. Devine, 36 Minn 53, 29 N.W. 342; Pye v. City of Mankato, 36 Minn 373, 31 N.W. 863; 9 Am. & Eng. Enc. Law, 378, and authorities cited in note 1; 2 Dillon, Mun. Corp. § 1024.
Towns in this state have a corporate capacity as respects the laying out and opening of highways, and the supervisors are merely officers and agents of the town, and yet the town is held responsible for their acts in highway proceedings. Woodruff v. Town of Glendale, 23 Minn. 537; Township of Hutchinson v. Filk, 44 Minn. 536, 47 N.W. 255. The work of constructing or repairing highways is not a judicial, but simply a ministerial, act, and the maxim that no one has a right to so use his own as to injure others applies to towns in highway matters. Tearney v. Smith, 86 Ill. 391.
In New York the distinction for which we contend has been made. Conrad v. Trustees of Village of Ithaca, 16 N.Y. 158; Weet v. Trustees of Village of Brockport, reported with Conrad v. Trustees; Rochester White-Lead Co. v. City of Rochester, 3 N.Y. 463; People v. Corporation of Albany, 11 Wend. 539; Elliott, Roads & S. 446, 447. See, also, Carpenter v. Nashua, 58 N.H. 37; City of Joliet v. Harwood, 86 Ill. 110; Oliver v. City of Worcester, 102 Mass. 489.
A municipal corporation is liable for negligence in placing obstructions in a street, or in performing work and making improvements on the street, to the same extent as an individual. Adams v. City of Oshkosh, 71 Wis. 49, 36 N.W. 614. An individual would be liable for the acts complained of. Beck v. Carter, 68 N.Y. 283; Dygert v. Schenck, 23 Wend. 445, 35 Am. Dec. 575; McCabe v. Town of Hammond, 34 Wis. 590.
L. G. Davis and John Lind, for respondent.
A town is liable for injuries caused by direct acts of negligence on the part of the road overseer in repairing a highway. Altnow v. Town of Sibley, 30 Minn. 186, 14 N.W. 877; Freeholders of Sussex v. Strader, 18 N.J.L. 108; Hill v. City of Boston, 122 Mass. 344; Walcott v. Inhabitants of Swampscott, 1 Allen, 101; Bryant v. City of St. Paul, 33 Minn. 289, 23 N.W. 220; Grube v. City of St. Paul, 34 Minn. 402, 26 N.W. 228; Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Abbett v. Johnson County, 114 Ind. 61, 16 N.E. 127; Gullikson v. McDonald, 62 Minn. 278, 64 N.W. 812.
The plaintiff was injured while riding along a public highway of the defendant town, by reason of an unguarded excavation in the road which was made under the direction of the proper overseer of highways, in attempting to repair the highway. She brought this action against the town to recover damages for her injuries. When the plaintiff rested, the trial court, on motion of the defendant, dismissed her action, and she appealed from an order denying her motion for a new trial.
The sole question presented for our decision by this appeal is whether or not a statutory town in this state is liable in an action by a private person for injuries sustained by her while using its highway, which were caused by direct acts of negligence on the part of the road overseer or other officers of the town in repairing such highway. It is the settled law of this state that a private person cannot recover from a statutory town for injuries resulting from the disrepair of a public highway. Altnow v. Town of Sibley, 30 Minn 186, 14 N.W. 877. The claim of plaintiff is that, while it must be conceded that a statutory town is not liable to a private person for injuries sustained by him by reason of the neglect of the road overseer to repair the highway, yet for his positive negligent acts in attempting to repair the highway, resulting in such injuries, the town is liable. On principle, there can be no difference between the cases, for, whether the neglect is positive or negative, the result is the same. In the one case it is a failure to repair; that is, a neglect to perform a public duty. In the other it is a failure to properly repair; that is, the negligent performance of a public duty. Both cases fall within the rule that no private action, unless given by statute, lies against a town or other municipal or quasi-municipal corporation for either the nonperformance or negligent performance of any public duty imposed on it by general statute as a governmental agent, without its request, and from the performance of which it derives no profit. Altnow v. Town of Sibley, supra; Dosdall v. County of Olmsted, 30 Minn. 96, 14 N.W. 458; Bank v. Brainerd School Dist., 49...
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