5 P.2d 581 | Colo. | 1931
THE plaintiff Moses was injured and his automobile destroyed in a collision on a public street in the City and County of Denver with a motor vehicle belonging to the fire department of the municipality, which, at the time, *610 was being driven by one of its employes, and in its business. To the complaint alleging the foregoing facts, the defendant filed a general demurrer which the court sustained and dismissed the action.
The question for decision is whether the city is liable for the alleged injury. Counsel for plaintiff, in the beginning of his argument on the law of the case, admits that the greater number of cases in the United States support the proposition that the city, in the maintenance and operation of a fire department, does so in the exercise of its governmental functions, to the extent that it is in nowise liable for injuries to others caused by negligence of its employes in using its fire extinguishing equipment. Nevertheless, counsel says that some respectable courts have held a municipality liable for the negligence of its servants in the operation of its fire department in cases wherein the facts are closely analogous to the facts in this case.
Our examination of the pertinent authorities satisfies us that the judgment of the trial court was right and must be affirmed. Plaintiff's chief reliance is upon Maxwellv. Miami,
[1] In 43 C. J., p. 967, § 1746, it is said: "The power to organize and maintain a fire department for the prevention of damage by fire is a public or governmental function, and a municipality will not ordinarily be liable unless the statute so provides, for the wrongful or negligent acts or omissions of the department or its employees in the performance of their duties, either in the actual work of extinguishing fires, or in otherwise discharging their functions as firemen, * * * or, generally where persons on the public streets are injured by the *611
negligence of firemen driving vehicles employed in the fire department." A large number of cases are cited to this statement. In Veraguth v. City of Denver,
In this case the court held that an ordinance of a city requiring all owners of buildings to furnish a safe receptacle for ashes, and prohibiting the deposit of ashes anywhere except in such ash-pit, is public in its nature, and its enforcement by the officers of the city is a governmental function; and where the owner of a building failed to furnish an ash-pit, and hot ashes were deposited in an open hole dug in the ground on the premises, into *612 which a child fell and was burned, the city is not liable in damages for the injury.
[2] In City of Denver v. Davis,
To the same effect are Veraguth v. City of Denver, supra, and McAuliffe v. City of Victor,
We cannot interfere with this judgment without overruling previous decisions of this court and our Court of *613 Appeals, and this we are not disposed to do, as they are in line with many decisions in this country.
Judgment affirmed.
MR. CHIEF JUSTICE ADAMS, MR. JUSTICE ALTER and MR. JUSTICE HILLIARD concur.
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