31 Am. Rep. 726 | Va. | 1879
delivered the opinion of the court.
This case is brought up upon a demurrer to plaintiffs’ declaration, and raises the question as to the civil liability of municipal corporations for injuries to private persons caused by defective and unsafe streets and sidewalks.
The City of Richmond—the defendant—is a municipal corporation, chartered by an act of the legislature of Virginia. Among the many important powers vested by the charter in the council is the power over .the streets and public alleys of the city—to close or extend, widen or narrow, lay out and graduate, pave and otherwise improve them; to have them properly lighted and kept in good order. -They may build bridges in and culverts under the streets, and may jirevent or remove any structure, obstruction, or encroachment over or under or in a street or alley or any sidewalk thereof. And they are invested with power to prevent the cumbering of streets, avenues, walks, public squares, lanes, or bridges in any manner whatever.
The grant of these powers to the city council is a grant to the corporation; (16 New York R., p. 161, opinion of Selden, J., in West v. The Trustees of the Village of Brockport, in note;) and the grant to the corporation is of a character to exclude its exercise by any other. The city corporation, by its charter, has the exclusive power to keep the streets and sidewalks in repair and
The means to perform the duty of maintaining the streets in a safe condition by authority to levy taxes, or impose local assessments, is conferred upon the defendant by its charter. If this view is correct.it is undoubtedly a duty devolving upon the corporation of Richmond City—the defendant—to keep its streets and sidewalks in repair and in safe condition. If it neglects to keep any of them in repair and in safe condition, by reason whereof private persons without fault on their part have sustained injuries, is the city liable in a civil action for damages ?
The books distinguish between municipal corporations proper and quasi corporations, such as counties and townships, and New England towns. It is almost universally considered that the latter are not liable to civil action for damages occasioned by defective roads and bridges under their control, unless so declared hy statute. There is no common laxo obligation upon them,
It is a general principle of law, and it is founded in reason, that when one suffers an injury by the neglect of another to perform a duty, in the performance of which he is interested, he has against him a right of action. This doctrine applies not only to individuals, but to private corporations aggregate, and it obliges such corporations to respond in a private action, though the action be not given by statute, for the damages which another has sustained by reason of its neglect or default to perform any corporate duty. Riddle v. Proprietors of Locks and Canals, &c., 7 Mass. R. 169;
The principle which lies at the basis of the decision in Henley v. Mayor, &c., of Lyme Regis, 5 Bing. 91, 3 Barn. & Adolph 77, as stated by Mr. Justice Selden in West v. The Trustees of the Village of Brockport (16 New York R. 163, in note), and of the series of English cases upon the authority of which that case was decided, is, “ That whenever an individual, or a corporation for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such corporation or individual is liable, in case of neglect to perform such covenant, not only to a prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance.” In Sawyer v. Corse, 17 Gratt. 230, Joynes, J., speaking for the whole court, announces the same principle; i. e., “that where the' authority, though for the accomplishment of objects of a public nature, and for the benefit of the public, is one from the exercise of which the corporation derives a profit; or where the duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemjition does not apply ”; and the reason he assigns why the corporation is not exempt from liability in a civil action, though differently expressed, is substantially the same—that “ the corporation is not acting merely as an agent of the public, and with a view solely to the public benefit, but that in the former
The case of Henley v. The Mayor and Burgesses of Lyme Regis, supra, went from the Common Pleas, through the King’s Bench, to the House of Lords. And the counsel for the plaintiff in the House of Lords contended that every breach of a public duty, or neglect of what the party is bound to perform, working wrong or loss to another, is injurious and actionable, a principle hereinbefore alluded to, and cited Sutton v. Johnstone, 1 T. R. 784, and Russell v. The Men of Devon, 2 T. R. 667. But it appears that the decision was not upon that ground, from the opinion of Park,-!., the only opinion given in the House of Lords, who, after quoting the charter, said: “ How, these words are undoubtedly an expression of the King’s will, that the corporation shall repair, but they are not the less a‘consideration on that account; on the contrary, they show the consideration for the grant, the motives inducing the King to make the grant, and consequently the terms and conditions on which the grant was to be accepted.”.
Mr. Justice Selden, in West v. Brockport, supra, very
■ While they may be governmental measures in theory, they are in fact regarded as privileges of great value,' and the franchises they confer are usually sought for with much earnestness before granted. The surrender by the government to the municipality of a portion of its sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on part of the corporation to perform with fidelity the duties which the charter imposes.”
Mr. Justice Cooley in a dissenting opinion in Detroit v. Blackely, says: “The Yew York courts have invariably held that when the people of the municipality accepted the charter which they thus solicited a contract was implied on their part to perform the corporate duties. They have always denied that in this respect there was any difference between a municipal corporation and a private corporation or private individual who had received from the sovereignty a valuble grant charged with conditions”; and he cites numerous decisions of the Yew York courts, which fully sustain the assertion. He cites, also, the decisions of other states—of Yorth Carolina, Pennsylvania, Indiana, Alabama, Connecticut, Illinois, Maryland, and Wisconsin, and the two decisions of this court before referred to. He also refers to decisions of the supreme court of the United States. These cases and -others which might be cited, though all of them may not go to the full extent of his proposition, I think' fully maintain the doctrine that municipal corporations are liable in civil action for neglect of duties, in •cases like the present, to a private citizen who has been injured by such neglect. The doctrine of Henley v. Mayor, &c., of Lyme Regis, as applied in West v.
But no one can maintain an action against the city grounded solely on the defect or want of repair of the street or sidewalk, but he must allege and prove that the corporation had notice of the defect or want of repair—which notice may be implied—and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the street or sidewalk. Weightman v. The Corporation of Washington, 1 Black’s R. 39. In this case the defect in the sidewalk, and the injury caused thereby to the plaintiff, and that the corporation had notice of it, are all averred in the declaration, and must be taken to be true on the demurrer.
Bor the reasons stated, and upon the authorities cited, we are of opinion that the plantiff's, upon the
Moncure, P., dissented.
■ The judgment was as follows:
The court is of opinion, for reasons stated in writing, that municipal corporations are liable to civil action at the suit of the party injured, because of a default in keeping the streets and sidewalks in repair and safe condition; and that the matters, substantially set out in the plaintiffs’ declaration, are sufficient in law to entitle them to their action against the defendant for damages, and that it was error in the court below to sustain the defendant’s demurrer to the plaintiffs’ declaration, and to give judgment thereon for the defendant. It is therefore considered that the judgment of the circuit court of Richmond be reversed and annulled, and that the plaintiffs in error recover their costs expended in the prosecution of their writ of error here. And the court proceeding to render such judgment as ought to have been rendered by said circuit court, it is considered that the demurrer to the plaintiffs’ declaration be overruled; and the cause is remanded to the circuit court of Richmond for further proceedings therein in conformity with this order.
Judgment reversed.