131 S.E. 349 | W. Va. | 1926
The trial court overruled a demurrer to the declaration and to each count thereof and certified his ruling to this court, which certification was ordered to be docketed and the ruling reviewed, under the latter part of section 1 of chapter 135 of the Code, as amended by the Acts of 1925. *607
It appears from the declaration that the City of Clarksburg owned and operated a motor tractor used for work in the construction of its streets, and had left the tractor on Pride Avenue which, at the point of parking, was on an incline. Plaintiff's intestate, a child of four years, with other children was playing or passing by along Pride Avenue and plaintiff's intestate climbed upon the tractor which, the declaration charges, was unlocked, unfastened and unguarded, and that it then suddenly without notice or warning of departure started to run back down the incline in said street, throwing plaintiff's intestate to the ground and underneath the machine thereby killing him.
The first two counts base recovery upon the theory that the tractor so owned and operated and left negligently and carelessly upon the streets where the children were likely to be and had a right to be, was of such an attractive character as to invite and induce them in their childish curiosity to climb upon it; that it was a dangerous machine when left unlocked and unguarded; and that the negligence of the officers of defendant in thus leaving the dangerous machine, attractive to children, in a public place in a thickly-settled part of the city, without being locked and guarded, makes defendant liable for the injury.
The third count predicates liability of defendant on the theory that by reason of the tractor being so placed unlocked and unguarded constituted a defect in the street and that by reason thereof the street was out of repair and was dangerous to persons having a right to be on the street, and that the death of plaintiff's intestate was caused by reason of the defect in the street for which liability is imposed by the statute, section 167, chap. 43, Code 1923.
In this State we recognize liability and non-liability of a city for acts committed by it according to whether the act was done in its governmental or proprietary character. If the act be done in carrying out a governmental function the city is not liable; if done in exercising some power not strictly governmental but of a private or proprietary nature, the city is liable. Brown's Administrator v. Guyandotte,
Was the negligent act of leaving the tractor unguarded and unlocked on Pride Avenue in a thickly populated part of the city done in pursuance of a governmental function or in the discharge of a proprietary act? The correct answer to this query will control the demurrer to the first two counts. These counts charge that the tractor was owned, used and designed to be used by the city for the purpose of hauling heavy loads and for work on roads and streets. The opening, grading and maintaining of roads and streets of a municipality are functions and duties purely governmental. In the discharge of that governmental function the city is not liable for the negligence of its servants and agents. Brown's Admr. v.Guyandotte,
The third count predicates right of recovery on the theory that the street was out of repair, made so by the city when it *610 left the tractor standing unlocked upon an incline on the public street. This count presents a question not without difficulty in its solution; for though it may be conceded that the tractor was to be used and was used in a purely governmental act, the statute has imposed liability upon municipalities for injuries received by any person by reason of a street being out of repair. Was the streeet out of repair? Did plaintiff's intestate receive his injuries by reason of a street unsafe for travel in the ordinary means by day or night?
In Douglass v. County Court,
The declaration does not state a case for recovery, and we so answer the question certified.
Ruling reversed.