58 P. 707 | Cal. | 1899
Lead Opinion
This action was brought to recover damages for personal injuries sustained by plaintiff by falling into a culvert on a public highway of the town of San Buenaventura. The defendants are the town marshal, who is also ex officio street commissioner, his bondsmen, and the individuals composing the board of town trustees. The charge in the complaint is, that the marshal and the trustees, whose duty it was to maintain the highway in good repair, negligently suffered and permitted the culvert to remain in an open and dangerous condition without railing or protection, and they permitted a railing, which had been erected to guard against the dangers of the culvert, to be removed and failed negligently to replace it. The plaintiff, upon a dark night fell into the culvert and sustained injuries in compensation for which he brings this action. By the charter of the town it is declared that "the trustees have the power to provide for the opening, lighting, and keeping in good repair streets and alleys," et cetera. (Stats. 1875-76, p. 535, subd. 17.) By subdivision 10 of the same act the marshal "shall perform the duties of street commissioner, and be governed by the provisions of this act, and such regulations or ordinances as the board of trustees may adopt relative thereto." Plaintiff further pleaded an ordinance of the town by which the street in question was declared to be a regularly graded, open, and accepted public street, "and it is hereby declared to be the duty of the street commissioner to keep the same open and in good repair as such." *216
This complaint was demurred to upon grounds both general and special. The demurrer was sustained, and from the judgment entered thereupon plaintiff appealed.
It is first insisted in support of the demurrer — and this may be said to be the principal question in the case — that the complaint states no cause of action because an action will not lie against public officers such as these for injuries resulting from their mere negligent omission. It is well settled in this state that generally an action will not lie against a municipal corporation for the misfeasance, malfeasance, or nonfeasance of its officers (Huffman v. San Joaquin Co.,
We conclude, therefore, that in proper cases — and this assuredly is one — such liability upon the part of a public officer exists. Further, we think that the circumstances under which such liability will attach are sufficiently shown by this pleading. The duty upon the part of the trustees to keep the highways in repair is correlative with the right accorded them by the charter to provide for the opening, lighting, and keeping in good repair the streets of the municipality. Upon the part of the marshal, it appears that he was ex officio street commissioner, charged with the duty of street commissioner under the law, and with such duties as might be imposed upon him by the board of trustees of the town, and that by the ordinance the special duty was imposed upon him of keeping this particular street in good repair.
Further grounds of demurrer were improper joinder of parties defendant, and the misjoinder of causes of action. Herein it is urged that the trustees' negligence, if negligence could be imputed to them, was not joint with the negligence of the marshal; that the marshal and the trustees were in no sense fellow delinquents or joint tort feasors, and the causes *218
of action were separate. Still further it is urged that, while it was permissible to join the marshal's bondsmen in an action against him for official negligence, the trustees were improperly joined as defendants with those bondsmen. It is unquestionably the rule that an action cannot be maintained against several defendants jointly for damages when there has been no concert of action or unity of design amongst them. But, upon the other hand, where direct personal injury is occasioned by the separate but concurrent negligence of two parties at one and the same time, an action will lie against one and all of them, and it is such an action as is here being prosecuted. (Tompkins v. Clay Street R.R.Co.,
It has been settled in this state since the case of Van Pelt v.Littler,
It is unnecessary to discuss the question of the validity or invalidity of section 23 of the Vrooman act (Stats. 1885, p. 161), since, as has been said, the duty of the defendants, as trustees and as street commissioner, is clearly established by the charter.
The judgment appealed from is reversed and the cause remanded, with directions to the court to overrule the demurrers. *219
Temple, J., concurred.
Concurrence Opinion
I concur in the judgment and in the opinion of Mr. Justice Henshaw. It is to be said, however, that this is a case of marked negligence on the part of respondents, and that a street commissioner or road overseer could be held to the exercise of only a reasonable degree of care, and would not be liable for accidents caused by slight imperfections in a highway.
Hearing in Bank denied.