84 Neb. 571 | Neb. | 1909
This was an action against the city of Lincoln for personal injuries resulting from a fall upon the sidewalk crossing occasioned by the accumulation of ice caused by the leaking of water from the hydrant and hose in use in
The case of Gillespie v. City of Lincoln, 35 Neb. 34, Avas where the plaintiff in the action Avas struck and' injured by a wagon of the fire department, and the city Avas held not liable on the ground that the duties otythat department were not municipal or corporate duties with Avhich the corporation is charged in consideration of charter privileges, but are police or governmental functions Avhich could be discharged equally well through agents appointed by the state, though usually associated Avith and appointed by the municipal body. But we said, on page 45: “The cases cited by plaintiff may be said to sustain the proposition that the law imposes upon a city the duty to keep its streets in a reasonably safe condition for use by the public, and for a neglect of that duty it will be answerable. They are plainly distinguishable from those to which we have referred, since the duty of the city with reference to its streets is a corporate duty. As said by Judge Eolger in Maxmilian v. Mayor, 62 N. Y. 160: ‘It is a duty with Avhich the city is charged for its corporate benefit to be performed by its oato agents as its OAvn corporate act.’ This distinction is made also in Ehrgott v. Mayor, 96 N. Y. 264, one of the cases cited by plaintiff. To the extent that the exemption of a city from liability for acts of officers herein enumerated af
Burke v. City of South Omaha, 79 Neb. 793, did not involve the exact question presented in this case, but the distinction between the two classes of cases is clearly pointed out and discussed, and a mere reference to it must be sufficient. We quoted with approval the following from a note to McMahon v. City of Dubuque, 70 Am. St. Rep. 143 (107 Ia. 62), “Municipal corporations, acting within the purview of their authority, and in their ministerial or- corporate character, in the management of property for their own benefit, or in the exercise of powers, assumed voluntarily for their own advantage, are impliedly liable for damage caused by the negligence of their officers and agents, though they may be engaged in some work that will inure to the general benefit of the municipality. Grading streets, cleansing sewers, or keeping wharves in safe condition, from which a profit is derived, are duties of this character.” See, also, Shinnick v. City of Marshalltown, 137 Ia. 72; Hitchins Bros. v. Mayor, 68 Md. 100; Esberg Cigar Co. v. City of Portland 34 Or. 282; Carson v. City of Genesee, 9 Idaho, 244. Further discussion would seem to be unnecessary.
The judgment of the district court is
Affirmed.