78 N.J.L. 592 | N.J. | 1910
The opinion of the court was delivered by
This suit was brought by the city of Paterson to recover damages for injuries received by one of its fire engines, in a collision between it and a train of the defendant companjr, at a railroad crossing in the city. The plaintiff’s proofs showed that the crossing gates were not down, and that no bell was rung or whistle blown on the train as it approached the crossing. It also appeared in the plaintiff’s case that the driver of the fire engine came onto the crossing without using care to see. whether or not a train was approaching.' At the close of the plaintiff’s case a non-suit was ordered upon the ground that its right of recovery was barred by the contributory negligence of the driver of the .engine. The plaintiff in error now challenges the soundness of that ruling.
Municipal corporations are engaged in the performance of public services in which they have no particular interest, and from which they derive no special benefit in their corporate capacity. The persons employed by them in the rendering of such service act as public servants charged with a public duty. They are mere agencies, or instrumentalities, by which such duties are performed, and the doctrine of respondeat superior does not apply to such employment. Condict v. Jersey City, 17 Vroom 157; Wild v. Paterson, 18 id. 406. Accordingly, it was held by this court, in the first of the cited cases, that a municipality was not liable for an injury occasioned by the act of a driver of an ash cart, employed by its board of public works to remove ashes and refuse from boxes and barrels placed on the sidewalk, in carelessly making a dump from his cart, and in the second case it was considered by the Supreme Court that a municipality was not responsible to a member of its lire department who was run over and injured while assisting to haul an engine to a fire, the accident having occurred because the persons in charge of the engine had carelessly permitted its brake to get out of order. Many cases to the same effect, and resting upon the same ground, will be found collated in 20 Am. & Eng. Encycl. L. (2d ed.) 1205, and in 28 Cyc. 1267, 1304. The concrete principle established by these decisions is that negligence in the performance of public duties by municipal agents, or instrumentalities, en
The judgment under review will be reversed and a venire de novo awarded.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vroom, Gray, Congdon, JJ. 14.