56 So. 329 | Miss. | 1911
delivered the opinion of the court.
Ernest Fernandez, a child four years old, while playfully chasing a hoop in the street of' the city of Pass Christian, was run over by a city cart and had his leg broken. Through his next friend, he sued the city for damages, and recovered judgment for one thousand dollars, from which judgment the city prosecutes an appeal.
The facts show that, when the child was struck by the cart, the driver was conversing with two women, and had his head turned in a different direction from that in which the child was approaching. The driver disputes this; but the verdict of the jury fixes the facts this way.
As appears above, the child was only four years of age, and, therefore, incapable of contributory negligence. The only real defense is that at the time of the injury-the cart and driver were engaged in a governmental duty, and on account of this no liability attaches on the part of the city. The case of Alexander v. Vicksburg, 68 Miss. 564, 10 South. 62, is cited as conclusive of this contention. We shall show that the above case is not in point further on.
It may be true, as an abstract proposition of law, that damage occasioned by the city in the exercise of a purely governmental duty does not render the city liable; but it must be a governmental duty, and the idea that a driver of a city cart, engaged in hauling trash and dirt for the city, is engaged in a “governmental function” in any sense in which the word is used in the law, requires a stretch of the imagination that is "beyond our power to make. It is a matter of no little difficulty to define what are and what are not purely governmental duties of a
The public or governmental duties of a city are those given by the state to the city as a part of the state’s sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private or corporate duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city the city is liable for all damage just as an individual would be. The use of the cart in hauling dirt or trash for the city is for no governmental purpose, as connected in any way with the sovereign duty of the state. The state does owe the duty to all its citizens of protecting the person from assaults and the property from destruction, and all done by the city in furtherance of this duty of the state is done in a governmental capacity. But the hauling of dirt and trash is for the use and advantage of the city in its corporate capacity, is a corporate duty, and the city is liable for all damage done by any officer or agent so employed.
The ease on trial is different from the case of Alexander v. Vicksburg, 68 Miss. 564, 10 South. 62. In the Alexander case the injury was inflicted by the fire department on its way to extinguish a fire in the city of Vicksburg. The fire company was under the control and managment of the city, and this court held that in such case the city was not liable. It might be well argued that, when a city undertakes to protect the property of a citizen from destruction by fire, it is acting in a governmental capacity and for the universal good, even though the state does not so undertake to do, and for this reason should be protected from liability in damages while so engaged; but this argument cannot be made as to a trash or garbage cart, used in the furtherance of purely corporate purposes. Affirmed.
