144 P. 471 | Or. | 1914
delivered the opinion of the court.
The first question raised upon this appeal is the same as that in the case of Coleman v. La Grande, post, p. 521 (144 Pac. 468), in which an opinion was this day rendered. It is contended that under its charter the City of La Grande is not liable for a tort.
The defendant city by a demurrer to the complaint, a timely motion for a nonsuit, and a requested instruction to the jury raises the further question that the City of La Grande in opening and building streets, constructing sidewalks, and keeping the same in condition for travel is exercising a governmental function, and therefore is not liable in an action for negligence in sucb work. It was stated in Esberg Cigar Co. v. Portland, 34 Or. 287 (55 Pac. 962, 75 Am. St. Rep. 651, 43 L. R. A. 435), a case which has ever since been followed, that:
‘ ‘ There is a well-established distinction made by the authorities between the liability of a municipal corporation for the acts of its servants, agents, officers or employees, done in the exercise of powers and duties granted to or imposed upon it as a mere agency of the state and performed exclusively for public governmental purposes, and acts done in the exercise of powers granted to or privileges conferred for its own profit.”
In 6 McQuillin, Mun. Corp., Section 2634, it is stated thus:
“It is equally well settled that a municipality acts ministerially in constructing and repairing public improvements or work, including streets, and hence is liable to persons injured by negligence in the performance of such duties.”
In Giaconi v. Astoria, 60 Or. 12, 30, 34 (118 Pac. 180, 184), after a thorough discussion of the question and the collaboration of many authorities, Mr. Justice Burnett states the rule thus:
“A municipal corporation is not liable for mere consequential injuries resulting from ordinarily careful administration of a reasonably prudent plan of*230 street improvement devised by the municipality in its governmental capacity; but, in the execution itself of any public works, the city acts ministerially, or, in the words of the statute, ‘in its corporate character and within the scope of its authority,’ and for its negligence or maladministration in that relation, resulting in an injury to the rights of another, it is liable in the same way and for the same reason as a natural person or private corporation would be under the same circumstances of executive management.”
Tbe evidence in tbe case tended to sustain tbe allegations of tbe complaint and to show negligence on tbe part of tbe city as alleged. Tbe judgment of tbe trial court will therefore be affirmed. Affirmed.