Wild v. Mayor

• Citation: 1 A. 490,47 N.J.L. 406
• Parties: WILD v. MAYOR, ETC., OF THE CITY OF PATERSON.
• Decision Date: 05 November 1885
• Court: United States State Supreme Court (New Jersey)

1 A. 490

47 N.J.L. 406

WILD

v. MAYOR, ETC., OF THE CITY OF PATERSON.

SUPREME COURT OF NEW JERSEY.

November 5, 1885.

On demurrer to declaration.

The action is in case. The declaration avers that the city of Paterson, under the authority of its charter, maintained a fire department, of which plaintiff was a member, attached to a certain company which used a steam fire-engine; that it was the duty of the city to provide for that engine a brake, and to keep it in good order and repair; that by reason of failure on the part of the city to perform this duty, plaintiff, while assisting to haul the engine to a fire, was run over and seriously injured. For the injury thus received plaintiff seeks to recover damages. A demurrer to this declaration was interposed.

Mr. Stout, for plaintiff.

Mr. Griggs, for defendant.

MAGIE, J. It has been settled beyond the possibility of further contention in this state that municipal corporations are not liable to action for neglect to perform or negligence in performing duties imposed on them by law, and due to the public, in behalf of any individual suffering damage by reason of such negligence, unless an action is given by statute. Where the employes or officers of a municipal corporation are negligent in the performance of such duties, the doctrine of respondeat superior, will not apply. Licermore v. Board Freeholders, 31 N. J. Law, 508; Pray v. Jersey City, 32 N. J. Law, 394; Cooley v. Freeholders, etc., 27 N. J. Law, 415; Freeholders, etc., v. Strader, 18 N. J. Law, 108; Condict v. Jersey city, 46 N. J. Law, 157.

The duty of the city of Paterson to maintain a fire department is manifestly a duty owed to the public and imposed by law. Any one injured by negligence in the performance of that duty will be debarred from action for such injury by the well-settled rule above stated.

Plaintiff's contention is that his case is exceptional, and not within the rule, upon the ground that the duty of keeping the machinery used for extinguishing fires, in good order, is, as respects those who are employed in its use, a private duty owed, not to the public, but to the employe. But the distinction thus sought to be made is in my judgment merely specious. It does not appear what was the precise relation between plaintiff, as a member of the fire department, and the city. Whether his services were voluntarily rendered or were paid for is not disclosed. But in either case the relation is not the ordinary relation of master and...