134 Minn. 451 | Minn. | 1916
A pole erected in one of the streets of defendant city, and used solely for the purpose of supporting a telegraph wire and an alarm box of the fire alarm system belonging to the city fire department, fell because it had rotted through where it entered the ground. Plaintiff’s son, a boy 14 years of age, and several other boys were playing in the street. In falling, the- cross-arm upon the pole struck and killed plaintiff’s son. Plaintiff brought suit for damages and recovered a verdict. Defendant appealed from an order denying the usual alternative motion for judgment or a new trial.
In providing fire protection, the city is exercising a public or governmental function, and is not liable for damages resulting from negligence in the performance of the duties which devolve upon its fire department.
Defendant insists that the fact that the pole was used exclusively for the purposes of the fire department brings the case within the rule which absolves the city from liability for injuries resulting from negligence on the part of its fire department, notwithstanding the fact that the pole was located in the street and rendered the street unsafe.
The charter of the city provides- that the commissioner of public works “shall be charged with the construction, control and supervision of all sidewalks, streets, lanes, pathways, bridges, alleys, public levees and sewers,’and it is hereby made the duty of said commissioner at all times to have and to keep all the sidewalks, streets, lanes, pathways, bridges, alleys and public levees in a cleanly condition, passable and safe for pkblie use and travel.” Whether this provision requires the city to exercise greater care than the previously existing law exacted, or is merely declaratory of the previously existing law, it makes clear the fact that the duty is imposed upon the city to keep its streets safe for public use at all times. The precise question now presented does not appear to have been directly passed upon by this court; but it is well settled that the city is liable for a dangerous condition of its streets caused by the acts of third parties, committed either with or without the consent of the city. Cleveland v. City of St. Paul, 18 Minn. 255 (279); Estelle v. Village of Lake Crystal, 27 Minn. 243, 6 N. W. 775; Hoppe v.
Defendant also contends that the verdict is excessive. The case has been tried twice. At the first trial, the jury returned a verdict for $7,500, and the trial court granted a new trial on the ground that it was excessive. At the second trial, the jury returned a verdict for $5,000. The trial court granted a new trial, unless plaintiff stipulated to reduce the verdict to the sum of $3,500, but denied a new trial in case such stipulation were filed. Plaintiff filed the stipulation and re
Order affirmed.