18 Pa. Super. 621 | Pa. Super. Ct. | 1902
.Opinion by
There was sufficient evidence in this case of the fact that the injuries to the boy, Ralph Powers, resulted from the bad condition of the board walk, by which he was tripped, and over or into which he fell, to take the case to the jury. This disposes of the first question raised by the appellant.
The second question presented is one of more difficulty, namely, Is the city liable at all for injuries to a school boy, suffered by reason of negligence in the maintenance of a dangerous board walk, running from the main school building to an annex, on property owned by the city and devoted to the use of a public school ? It has been more than once said by the Supreme Court that distinction between the cases where municipal corporations have - been held liable for torts, and where they have not, is neither entirely logical nor obvious. It has been held that where the city engages in a business from which revenue is derived, as where it furnishes to its citizens water (Philadelphia v. Gilmartin, 71 Pa. 140); electricity (Bodge v. Philadelphia, 167 Pa. 492); or gas (Kibele v. Philadelphia, 105 Pa. 41), the relation of the employees to the city is that of servants, and the maxim respondeat superior applies to acts of negligence in conducting the business. But where injury results from the act or negligence of the servants of the city in the performance of public duty, the maxim does not apply. Thus, the city is not liable for the negligence of its police: Elliott v. Philadelphia, 75 Pa. 347; Borough of Norristown v. Fitzpatrick, 94 Pa. 121; nor for the negligent driving of a fire engine by an employee of the fire department: Knight v. Philadelphia, 15 W. N. C. 307; Kies v. Erie, 135 Pa. 144. The case last cited furnishes a striking illustration of a further distinction. The case was tried twice. As cited above it affirms the doctrine for which it is cited. It again
In Briegel v. Philadelphia, the propositions of law, laid down in the language quoted, were applied to a case where the real estate was devoted to the uses of a public school. In the case at bar, the property was so used. In Briegel v. Philadelphia, no weight was given to the fact that the use was in the nature of a charity, and the principles of Boyd v. Fire Insurance Patrol, supra, were not applied. It follows that, in the case at bar, any person lawfully at the place where the plaintiff fell, receiving injury from the negligent maintenance of the board walk, could hold the city liable. Pre-eminently should this be true of school children, who are not only invited, but under compulsion to attend the city’s schools.
No error being shown to have been committed by the court below, the judgment is affirmed.