42 S.W.2d 383 | Ark. | 1931
The only question presented by this appeal is whether the city of Little Rock, in the operation *382 and maintenance of an electric light plant and distributing system, including necessary poles and wires, for the sole purpose of lighting its streets, alleys, public buildings and grounds, acts in a proprietary, corporate capacity, to which liability for negligence attaches; or whether it acts in its governmental capacity, on which no liability for negligence of its agents or servants may be predicated.
Appellee, an electric lineman in the employ of the city was sent out alone by his superior to remove a pole in the city's electric line. He climbed the pole, after an inspection, to remove the wires therefrom, and, when he had reached the top, it broke because of a rotted condition beneath the surface of the ground, causing him to fall and receive painful and permanent injuries. Negligence was alleged by reason of the failure of his superior to inspect the pole or to warn him of its dangerous condition, in failing to furnish him a safe place to work, and in not sending another to assist him. A demurrer to the complaint was interposed and overruled. A trial resulted in a verdict and a judgment for appellee for $1,000. Is the city liable for the negligence of its agent or officer as alleged in this respect?
It is conceded that the city owns and operates its light plant and distributing system for the sole purpose of lighting its streets, alleys, public buildings, parks and grounds, and that it sells no current to private consumers or otherwise.
At the outset we desire to commend the diligence of counsel for both parties in the preparation of the excellent briefs submitted to us. An exhaustive review of our own decisions touching on the question, as well as a great collection from other jurisdictions, has been made. We find it unnecessary, however, to go beyond our own cases to determine the question involved, as we feel the principle has been well settled by many decisions of this court. We will not undertake to review them all, but only enough of them to show that the principle has been decided. *383
As early as Granger v. Pulaski County,
Whatever distinction between liability of counties and cities the court pointed out in the Granger case, supra, has been lost sight of by this court in its later decisions. For instance, in Arkadelphia v. Windham,
In Brown v. Bentonville,
From the foregoing cases we may deduce the following principles as being well settled:
1. That a municipality is not liable for the nonfeasance of its officers and agents. *385
2. That a municipality is not liable for the negligence of its officers and agents in the performance of a governmental function.
We think unquestionably the city of Little Rock, in lighting its streets, public buildings and grounds, is engaged in the performance of a necessary governmental function, necessary for the convenience and safety of the public, not only of its own citizens, but of all others who may be visitors therein, for the prevention of crime, for the apprehension of criminals and for other purposes. If the maintenance and operation of waterworks, the maintenance and operation of sewers, and building and repair of streets are necessary governmental functions, for which municipalities are not liable for the negligence of its officers and agents, it is difficult to perceive why the same rule should not apply to the facts in this case. We hold that it does. Appellee bases his action upon the failure of his superior to perform a duty, a mere act of nonfeasance, for which the city is not liable, and for negligence in the performance of a governmental function for which the city is not liable.
The court therefore erred in overruling the demurrer and in submitting the case to the jury. The judgment will be reversed, and the case dismissed.