57 N.W. 506 | N.D. | 1893
The action is brought to recover damages for personal injuries received by the plaintiff while driving along a public street within the City of Fargo, about 9 o’clock at night. The principal facts are undisputed. A small trench had been dug across the street, and was left unguarded, and no lights, fence or other warnings to the public were placed at or about the ditch. The plaintiff drove into the ditch, and was thrown from her carriage and injured. The evidence shows that one Maurice Holcomb directed the ditch to be opened, and the ditch was dug by him and others who were working under his direction. The excavation was made Saturday afternoon, and the accident occurred the Sunday evening next following. Holcomb testified that he was street commissioner of Fargo at the time in question, and was asked the following, among other, questions: “Q. Did you have a man there employed by the city, and did you direct him to do it? A. Yes, sir. I had a man to work at different places. Q. Did they did this ditch under your direction? A. As I said, I don’t know as I can answer that question without explaining myself. It was at the time of the high water here last March. It had thawed, and then froze up again quite suddenly, and froze all the water boxes full of ice, and when it commenced to thaw and rain it flooded this part of town so that many sidewalks were under water, and we were trying to dispose of the water as best we could, and turn it in a different direction whenever we found it swollen. I took out the Saturday afternoon gang up to this little church, where this ditch was, and the water came up covering the sidewalk. I sent a man over, and the water was driving across the street, and I opened a little channel there so that the water, instead of backing any further up the church steps, would run across, and go into the culvert on the other side. I directed the man to open it.” No city ordinance or other evidence was introduced tending to show that
In his brief, counsel for appellant says: “The single question presented to this court is whether, under our statute, the defendant is liable.” The only proposition advanced or discussed by the appellant’s counsel is thus stated: “A city is not liable for the neglect of its officers unless made so by statute.” To sustain this view counsel cites several cases from California, among them Chope v. City of Eureka, 78 Cal. 588, 21 Pac. 364; also City v. Pearce, 46 Tex. 525; Hill v. City of Boston, 122. Mass. 346, and other cases. We quote further from the brief of appellant’s counsel: “In the case of Chope v. City of Eureka, which was an action brought for alleged personal injuries caused by the plaintiff falling into an excavation for a sewer within the corporate limits of defendant, the court say: ‘It has long been the settled law of this state that a municipal corporation is not liable for personal injuries to individuals such as that claimed to have been sustained by the plaintiff where there is no statutory provision declaring such liability.’ ” Counsel further proceeds as follows: There is a dissenting opinion in the above case, in which § 1024 of Dillon on Municpal Corporations is quoted and indorsed. The section of Dillon quoted is undoubtedly good law, but it does not appear to be in
Under the statute this court is required to take notice judicially of the various provisions of the general law governing the
Counsel calls attention to the fact that no evidence was offered tending to show that the city, at the time the ditch was dug, or prior thereto, had created the office of street commissioner, and hence that the city could not be held responsible for acts done by a person not shown to be an officer of the city. It is true that no ordinance or other evidence was offered tending to show that such an office as street commissioner existed in the city^at or prior to the time in question, and courts cannot take judicial notice that any city organized under the general law has such an office as street commissioner, because no such office or officer is named in the statute. Comp. Laws, § 893. Holcomb’s testimony was competent to show that he was the acting street commissioner only when offered in connection with evidence that there was such an officer in the city. Holcomb’s evidence would tend to show that he was at least a de facto officer, but there can be no such thing as a dc facto officer until an office is shown to exist de ffire. “The idea of an officer implies the existence of an office which he holds. It would be a misapplication of the terms to call one an officer who holds no office, and a public office can exist only by force of law.” This language is quoted from an opinion of Mr. Justice Field. It will be found cited, with other authority in point, in Throop, Pub. Off. § 638. It therefore does not appear technically that the excavation in question was made under official authority. We think, however this does not relieve the city from liability in a case like this, where the evidence shows that the wrongful act was done by persons engaged in doing work which the law requires the city to do, and one of whom at least is shown to have been in the pay of the city at the time. While it