136 Mo. 657 | Mo. | 1897
This is an action for damages for personal injuries sustained by plaintiff while engaged as a laborer in digging a trench for a sewer in said city. The work was being done by the superintendent of streets of the city under an order of its board of public works. Plaintiff was employed by said superintendent. The work was being done under the immediate charge of one Powers as foreman, who was also employed by the superintendent.
The petition alleged “that the defendant and its duly appointed representative in charge of said work, negligently and carelessly failed to sufficiently brace, shore up, and protect the walls of said trench so as to make said trench reasonably safe for plaintiff to work in, in this: that it failed to place enough braces in said
The ditch caved in while plaintiff was at work and he was severely injured by the falling earth.
The defenses were a general denial of the allegations in the petition, and charges of contributory negligence.
From, a judgment in favor of plaintiff in the sum of $3,500 defendant appealed.
In 1891 the defendant city in pursuance of a provision of its charter, providing that it shall have power “to establish, erect, and keep in repair bridges, culverts, sewers, and to regulate «he use of same,” passed the following ordinance under which it is claimed by •plaintiff the work was being done at the time plaintiff sfras injured, to wit:
“An ordinance to establish and cause to be constructed a joint district sewer in sewer districts numbers 108 and 166.
iol ug6 ^ ordained by the common council of Kansas •fepy;
•UX! “Section 1. That a-joint district sewer be and the fer&e is hereby established and shall be constructed in %Mfer districts numbers 108 and 166, which shall be as ÍSMffws, to wit:
^^“Beginning at a'point on the center line of CampIdétfiíreet sixty-six (66) feet north of the north line of Nineteenth street, thence south along the center line of 3érknM)^ll street to a point one hundred and forty-eight 18¶3$| tenths (148.5) feet south of the south line of fth street, thence on a curve to the right forty-"ye tenths (46.5) feet to a connection with the fe i U.°]L?creek sewer, with an interior diameter of six (6) to/M0© inches. ■
*663 “The aforesaid sewer shall be constructed of the best hard burned brick, and shall be constructed in accordance with plans prepared for the construction of the same now on file in the office of the board of public works, marked ‘approved,’ and dated August 21, 1891.
“A manhole for inspection, ventilation, and cleaning shall be constructed as a part and appurtenance to said sewer at a point on the center line of Campbell street eighteen (18) feet south of the north line of Nineteenth street.
“Section 2. The work to be completed within forty (40) days from the time a contract therefor binds and takes effect, and to be paid for in bills of assessment of special taxes against and upon the lands in the aforesaid sewer districts, as provided by law; this work the board of public works and common .council deem necessary for sanitary and drainage purposes.
“Section 3. All ordinances or parts of ordinances in conflict with this ordinance are, in so much as they conflict with this ordinance, hereby repealed.”
On October 31, 1893, the board of public works made an order by which the superintendent of streets was ordered to construct the connection of the Campbell street sewer with O. K. creek sewer. Prior to the issuance of this order, the city, by ordinance number 268, had directed the superintendent of streets to do whatever work the board of public works might order. By this ordinance he was also authorized to employ laborers and foremen, and he was also authorized to direct them where to work.
Acting on this order of the board of public works, and the said ordinance of the city providing for the construction of said sewer and the ordinance directing him to do work ordered by the board of public works and employ men and place them at work, the superintendent of streets, after getting the plans from the city
At the time of the injury the trench in which plaintiff was at work was braced and shored up in accordance with the directions of the superintendent. The earth in which the excavation was made was what is known as “filled” or “made” earth, which was more liable to cave, and therefore required more bracing. Plaintiff did not know that it was “filled” earth. The excavation was seven or eight feet deep when he began working in the trench. He had been working in the trench only a day and a half when hurt. All of his experience prior to the time of the excavation, with the exception of one job, was in rock work, and he was not familiar with dirt excavations.
This is but a concession of what is the well settled law in this state. Murtaugh v. St. Louis, 44 Mo. 479; Hannon v. St. Louis County, 62 Mo. 313; Armstrong v. Brunswick, 79 Mo. 319; Kiley v. Kansas City, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 208; Keat
But plaintiff insists that the building of sewers, construction of streets, and work of that general character, by municipal corporations, is the exercise of a corporate or private function of power, as distinguished from a governmental or public function of power.
It is sometimes a difficult matter to draw the line of demarcation between what acts of a municipal corporation are for the benefit of the public and those which are for the private benefit of the corporation. In McKenna v. St. Louis, 6 Mo. App. 320, it was said: “Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there, are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public concern in which all people have a common interest which it is the chief end of every good government to protect.”
Keeping the peace, enforcing laws and ordinances, preserving the public health, preventing fire, punishing criminals and wrongdoers, caring for the poor, and educational work, are questions within the province of the municipality as a governmental agency,
In Jones on Negligence of Municipal Corporations [1 Ed.], section 140, page 266, it is said: “There are, ordinarily, many preliminary questions to be settled before the details of any public work can be arranged. These are questions which call into force the governmental powers of the corporations. They concern, ordinarily, the expediency of doing the proposed work and the general manner in which ib shall be done. And upon these and similar questions municipal corporations act without responsibility. It is for them to decide in what manner they shall exercise their discretionary and judicial powers, and they incur no liability because of their decisions upon these questions. Thus, in regard to drains and sewers, it is ordinarily for the corporation to decide when it shall have a system of drainage and sewerage; how extensive the system shall be, and what amount of money the corporation shall expend upon it. These are questions within the province of the municipality as a governmental agency, and the courts can not review its conclusions in regard to them. And, until they are settled and some specific work is decided upon, the legal obligation to exercise care is not brought to life.”
“But as soon as the corporation has determined to construct a public work, it enters upon an undertaking which, in all its details, should be subordinated to the rule requiring the use of care, for the work is then ministerial.” Ib., sec. 141, p. 267.
In Johnston v. District of Columbia, 118 U. S. 21, it is said: “But the construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in repair, the municipality which has constructed and owns the sewer may
“The work of constructing gutters, drains, and sewers is ministerial, and when, as is usually the case, the undertaking is a corporate one, the corporation is responsible in a civil action for damages caused by the careless or unskillful manner of performing the work.” 2 Dillon’s Municipal Corporations [4 Ed.], sec. 1049.
The same rule was announced by this court in Thurston v. St. Joseph, 51 Mo. 510, and seems to be the general if not uniform doctrine upon this subject.
The sewers of the city are its private property; the citizens are alone interested in them, the general public of the state at large has no interest in them, any more than they have in water works when owned by a city, by which its citizens are supplied with water, and in this very important particular differ from the streets of the city, which are for the benefit of the public generally.
It is argued by defendant, that as the work in digging the trench for the sewer was not done as provided by the. charter it was unauthorized, and that in consequence thereof, no liability can arise by reason of the negligence of an officer or employee of the city in doing work, not in accordance with the provisions of its charter.
It must be remembered that this is not an action for the violation of a contract entered into by defendant city, without authority, as was in Cheeney v. Brook-
By its charter defendant is given power to establish sewers and to regulate the same, and while it had no power to authorize the commission of a trespass, yet inasmuch as it was acting within the general scope of its power in constructing the sewer, it was doing an act in its nature lawful, although done in an unlawful manner. It had by ordinance established the sewer, had directed the superintendent of streets to do whatever work the board of public works might order; had authorized him to employ 'laborers and direct them where to work, and in pursuance of this authority he employed plaintiff and the city paid him for his labor.
In Norton v. New Bedford, 43 N. E. Rep. 1034, the plaintiff was employed as a laborer in the construction of a sewer and while at work in a trench was hurt by the caving in of one side of the sewer. The court said: “It would be unjust to allow the city to contend in defense of this action that, because of some omis
The corporation having as a natural person undertaken the construction of the sewer, should,. to the same extent, and under the same circumstances, be held to respond in damages for the wrongful acts of its officers and servants, and should not be permitted to escape responsibility upon the ground that such wrongful- acts resulted from the exercise of powers not granted by its charter or ordinances.
The superintendent of streets in defendant city had charge of the work on the sewer. He employed hands, placed a foreman over them, and gave directions to them how the work should be done. He also furnished the lumber and necessary braces, and directed how they should be put in, which was done according
There is no pretense that the sides of the trench where the accident occurred were properly braced in the first place, and subsequently rendered unsafe or insecure by the act or negligence of a fellow servant of plaintiff. The accident was not occasioned by the act or omission of a fellow servant.
Conceding that plaintiff knew the manner in which the trench was braced this alone would not prevent his recovery; it must have been further shown that he knew that it was dangerous and that he thereafter continued to work knowing it to be so. Sullivan v. Railroad, 107 Mo. 66.
It was a duty which defendant owed to plaintiff to furnish him a reasonably safe place in which to work.
Moreover, whether plaintiff ever became aware of the unsafe condition of the sewer before the accident, and thereafter assumed the risk by continuing in the service, were questions that were submitted to the jury under instructions very favorable to defendant, and they found adversely to this contention.
Finding no reversible error in the record the judgment is af hr med.