144 Mich. 472 | Mich. | 1906
Lead Opinion
{after stating the facts). 1. Thecharterof the defendant city provides for a board of fire commissioners, which is entrusted with the entire control of the fire department. It also has a board of public works, which is authorized to cause its inhabitants to be supplied with water, to'furnish the same at established rates, and to
“ A municipality, in the absence of a statute to the contrary, is not responsible for injuries caused by the negligence of its employés engaged in so-called governmental functions, is too well established in this State to be questioned at the present time. * * *
“ Without doubt, according to the weight of authority, a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to-the extinguishment of fires.”
Under this concession, which is undoubtedly the law,, the citation of cases in this court or any other jurisdiction is unnecessary.
Counsel for both sides have shown great diligence in examining and citing cases, not so much for the purpose of stating the law as of finding facts similar to those in this case, and thus showing, the one that it is within, and the other that it is without, the rule. The question becomes one of fact. The court found, and so instructed the jury, that this hydrant had never been used for any other than fire purposes; that no-water had ever beén sold by the city or used by it for any other purpose than for the extinguishing t of fires; that-the sole object of opening and flushing this hydrant was. for the purpose of removing sticks and stones which might have accumulated or been put there, so that in case of fire its use would not be obstructed. It was immaterial that these firemen opened and flushed other hydrants in the city for other purposes, such as purifying-the water, or that they rendered that service for the city or board of public works at the same time that they were-flushing the hydrants used exclusively for fire protection.. It was also immaterial for what purpose other hydrants, were used. All such testimony was therefore properly excluded. There was no evidence introduced showing-
The city had no pecuniary interest in establishing or maintaining this hydrant. It received no compensation for its use. It was maintained entirely by taxation upon the entire city, and its use was for the sole benefit of the-city. It was constructed, maintained, and used in a governmental capacity. Welsh v. Village of Rutland, 56 Vt. 228; Edgerly v. Concord, 62 N. H. 8; Fisher v. City of Boston, 104 Mass. 87.
. 2. This action cannot be maintained under the statutory liability. The street was paved, was in good condition, and reasonably safe for travel. Its condition had nothing to do with the accident. The sole cause of the accident was the sudden flow of the water, which frightened the horse.
Judgment affirmed.
Concurrence Opinion
I concur in affirming the judgment upon the ground that the periodical inspection and flushing of hydrants, which was being conducted at the time' the plaintiff was injured, was undertaken and supervised by the officers and agents of the fire department pursuant to the duty to see that the hydrants were in proper condition to be used in case of fire, in the performance of which duty they acted as independent public officers. I do not think the testimony shows — and, if it did, it would be entirely immaterial — that the city had no pecuniary interest in establishing and maintaining the particular hydrant, received no compensation for its use, and that it was constructed, maintained, and used in a governmental capacity. The water system of the city of Grand Rapids is a single system, constructed, owned, and operated by thp city in its private, proprietary capacity. The testimony discloses, and it is matter of common knowledge, that such use may be made of the system, and of each hydrant
