19 Colo. App. 473 | Colo. Ct. App. | 1904
The only question which the record presents is whether, upon the facts alleged and proved, the city incurred a liability for the injury sustained by the plaintiff. The line of argument by which counsel seek to establish such liability, is that the charter invested the city with full power to enforce its ordinances, and charged certain of its officers with the duty of seeing that they were enforced; that the failure of those officers in the performance of their duty was imputable to the city as its. own dereliction of duty; that, but for such dereliction, the injury would not have been sustained; and that in all cases a municipality, like a private corporation or individual, is answerable for the consequences of its negligence. The argument recognizes no distinction between the classes of powers conferred upon municipal cor
The law as we have stated it is thoroughly established. The cases to which we have been referred in behalf of the plaintiff simply affirm the liability of the municipality for the neglect of a duty resting upon it in respect to its special or local interests; but in many of the opinions occasion is taken to distinguish between its public and private functions; and in our citations, we have made use chiefly of authorities furnished to us by plaintiff’s counsel.
The question then is, what was the nature of the power exercised by the city in the enactment of the ordinance relating to the deposit of ashes ? It. is evident that the purpose of the ordinance, as
But it is sought to sustain this action upon another ground, namely, that the ash-pit was a nuisance, and that the charter made it the duty of the city to abate nuisances. We shall enter into no discussion of the question of the city’s responsibility with respect to nuisances, because, upon the record before us, we do not find the question to be involved in the case. The ash-pit as described by the witnesses was not a nuisance within any definition of the term. It was not shown that the public or individuals were suffering annoyance or injury from it. The injury which was sustained was not one which it was the design of the ordinance to prevent. The pit was upon private inclosed ground, to which the public had no right of access; and the danger which attended it, as shown by the accident that occurred, affected only the occupants of the premises, who, owner and tenants, as the evidence abundantly showed, were severally and equally responsible for its existence. To constitute it a nuisance, it must, in some manner, have injured or annoyed others in the