82 Pa. Super. 328 | Pa. Super. Ct. | 1923
Argued October 9, 1923.
This action in trespass was brought against the City of Philadelphia to recover damages for personal injuries sustained by plaintiff as the result of alleged negligence of defendant's servant who, within the scope of his employment, was engaged in the Bureau of Street Cleaning of the Department of Public Works of the city in driving an automobile truck loaded with ashes, which were being removed from private premises. The trial resulted in a verdict for plaintiff. A motion for judgment non obstante veredicto followed, the city asserting that it is not legally responsible for the negligence of its employees when engaged in the removal of ashes from private *330
premises. From the dismissal of this motion and judgment entered on the verdict we have this appeal. Collins v. Com.,
Section 5, of article XX, of the Act of June 25, 1919, P.L. 581, entitled "An Act for the better government of cities of the first class of this Commonwealth," and known as the "Charter Act," provides, inter alia, as follows: "Any such city shall have the power to pave, repair and clean the streets, collect ashes, waste, rubbish and garbage within the limits of such city and to dispose of street sweepings and of ashes, waste, rubbish and garbage......" Appellee does not contend that the city, in collecting ashes, was discharging a positive and imperative duty imposed on it by law. His counsel concedes that the duty of the city to collect ashes is not mandatory. We do not decide whether the duty was absolute and imperative or merely discretionary, because in our opinion liability does not depend upon the answer to that question. If the positive and mandatory character of a duty imposed deprives a municipal corporation of its right to exemption from liability for negligence, the distinction between public governmental functions and private corporate functions becomes unimportant. The positive mandate of the legislature that a city shall maintain a police or fire department would result in making such city liable for the negligence of its policemen and firemen. A similar positive *333
mandate that a city shall carry out prescribed regulations to protect the public health would result in rendering the city liable, although the duty performed would be purely governmental in its nature. We think the true test is whether the duty is public and governmental or private and corporate. As characteristic examples of public or governmental functions we have the case of the policeman and fireman. Equally characteristic of private or corporate functions are the cases of municipal water supply or lighting plants furnishing conveniences to the inhabitants for compensation. But municipalities have been held liable in many cases where the commercial nature of the business is lacking. A municipal corporation is not liable merely because it derives an income from a purely governmental work if the income is purely incidental to the main purpose of the work. If the function undertaken is commercial in its nature, the corporation is not exonerated from liability by the fact that its operations are not or cannot be profitable. See 19 Ruling Case Law, paragraph 392. There is a conflict of opinion as to whether the function assumed by almost all of the larger municipalities of gathering garbage, refuse, rubbish and ashes from private residences and carrying it off to a dumping ground is a public or private one, but the weight of authority is to the effect that it is a public or governmental function and that the municipality is not liable for the negligence of the persons employed therein: 19 Ruling Case Law, paragraph 406. In support of the view that such work is to be deemed a governmental function, we cite Harris v. District of Columbia, 14 A.L.R. 1471; Love v. Atlanta,
The judgment is reversed and the record remitted to the court below, with direction to enter judgment in favor of the defendant.
LINN, J., dissents.