167 Ind. 139 | Ind. | 1906
By appellant’s complaint in this action appellee was sought to be charged with negligence in the management of its public lighting system, whereby appellant’s intestate was killed, on his own premises, by coming in contact with a live wire, belonging to appellee, which had fallen from its electric light pole in the adjoining street. A demurrer was sustained to the complaint, and from the judgment which followed appellant appeals.
It is contended by counsel for appellee that, as it does not appear that the city made any use of said system other than for the purpose of lighting its streets, it was acting in a governmental capacity, and is therefore not to - be held liable for the negligence of its employes and servants in the management of the property.
There is really but one question in this case, and that is, was the omission a corporate dereliction, or was appellee’s act in providing’ a public lighting system a governmental undertaking? In the.determination of this question it is proper to consider the manner in which the power was conferred, the obligations which naturally flow from proprietorship, and the purpose for which the power was granted and exercised.
In the case last cited, which is a leading one upon the general subject under discussion, the question involved was as to the liability of the city of New York for the negligent construction of a dam by its water commissioners. A point of difficulty was presented, in that such commissioners were designated by the legislature, but the city had accepted the benefit of the act. In response to the argument that the undertaking was governmental in its character, Nelson, C. J., said: “The argument of the defendants’ counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body—such as are granted exclusively for public purposes to counties, cities, towns and villages, where the corporations have, if I may so speak, no private
In Barney Dumping-Boat Co. v. Mayor, etc., supra, the question arose as to the liability of the city of New York for the negligence of persons in charge of a tug used by the city in connection with the "cleaning of its streets. Judge Wallace, in referring to the duties of the street commissioner, said: “His duties, unlike those of the officers of the departments of health, charities, fire, and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to them.” Following the last-cited case, it was held in Missano v. Mayor, etc., supra, that the city was liable for the negligence of the driver of an ash car who was employed in the street-cleaning department.
Judgment affirmed.