95 Ga. 129 | Ga. | 1894
Love brought against the City of Atlanta an action for damages, alleging, in substance, that while he was passing along the streets of the city, in the exercise of .proper care, without fault upon his part, by, through and because of the negligence of a servant of the defendant, an animal attached to one of the garbage carts of the city was permitted to run away, and while so running, collided with the buggy of the plaintiff, causing serious injury; it was also alleged that the driver of the cart was a small negro boy wholly incompetent to the discharge of the duty, and that the mule employed was vicious, dangerous and liable to run away. The evidence proved the plaintiff’s cause of action as laid in the declaration; and in reply it was shown that the mule and cart causing the damage were in use by the city under the direction of the health board of the city, and that the servant of the city charged with driving said cart was then employed in cleaning the streets and removing therefrom such putrid and offensive substances as usually accumulate in the streets of densely populated cities, and which were necessary to he removed because, remaining, they endangered the public health. At the conclusion of the evidence, the trial judge directed a verdict'for the defendant, instructing the jury that inasmuch as the uncontroverted testimony showed that the injury complained of was inflicted by servants of the city .employed by that department of the city
Distinctions do not appear to have been at all times accurately drawn between the classes of cases in which a municipal corporation would be liable, and those in which it would not be liable for the misfeasance or nonfeasance of a public servant employed under municipal authority in the discharge of duties relating to corporate affairs. One general proposition, however, seems to have received general recognition at the hands of courts of last resort wherever that class of cases has been considered; and that class of eases is, that where an injury sustained is inflicted because of the misfeasance of an agent of a corporation while engaged in a duty pertinent to the exercise of what are termed governmental functions of a corporation, the city is not liable. Where injuries under similar circumstances are inflicted by the agent of a corporation acting for it in the discharge of a duty on behalf of a municipal corporation where it is engaged in the exercise of some private franchise, or some franchise conferred upon it by law which it may exercise for the private profit or convenience of the corporation or for the convenience of its citizens alone, in which the general public has no interest, for such injuries a right of recovery lies against the city. Some difficulty has arisen in the application of these general principles to the facts of particular cases which from time to time have arisen. Some difficulty has risen in the proper classification of cases in order to assign each to its appropriate position with reference to the liability
With respect to matters concerning the public health, however, there is no serious conflict of reason, opinion or authority upon the correctness of the proposition
Let us inquire, then, -whether 'the particular service being performed by this particular servant of the corporation had special reference to the preservation of the public health. The accumulation of garbage, of substances offensive to the sense of smell, of substances which, if permitted to remain, would poison the atmosphere andbreed diseases infectious and contagious among the inhabitants of the city, may well be said to endanger the public health. The preservation of the public health involves the removal of those causes which are calculated to produce disease. According to the undisputed testimony in this case, the driver of this garbage cart and the alleged refractory mule were engaged actually in the removal from the streets of substances similar to those described above. However incongruous it may appear to be to say that this diminutive darkey and this refractory mule were engaged in the performance of some of the functions of government, it is nevertheless true, and illustrates how even the humblest of its citizens, under the operation of its laws, may become in Georgia an important public functionary.
Judgment affirmed.