199 P.2d 119 | Wyo. | 1948
The second amended petition in the Wilson case alleges in substance the following facts: The City of Laramie is a municipal corporation, and has general supervision over the pipes and conduits for supplying water to the inhabitants thereof. Prior to the date of the accident herein, the City was engaged in cutting down and lowering the grades of certain streets. In doing so, it uncovered and exposed water pipes and *240 gas pipes belonging to the Rocky Mountain Gas Company. Hence it was necessary to excavate trenches in the streets in order to replace the pipes above mentioned. The Rocky Mountain Gas Company performed the work of excavating trenches, but the City back filled them, and, in doing so, used a Caterpillar tractor equipped with dozer and scraper equipment. The tractor was operated by the defendant Conger. On July 12, 1941, Conger, after having used the Caterpillar tractor for backfilling as above mentioned, parked it on a slope or hill of a vacant lot adjacent to where the work was done and left it unguarded. He "backed said Caterpillar tractor on said hill, with the gears engaged, the dozer and scraper raised, and without any safety device to hold said tractor where it was parked. It was placed by defendant Conger so that when he returned to work, the clutch could be pushed out and the Caterpillar tractor, of its own weight would roll down the hill and then by engaging the gears would cause the engine to start of its own accord, thus avoiding the cranking of said Caterpillar tractor engine." Prior to and on July 12, 1941, one of the lots bordering on the place where the tractor was parked, and other lots adjacent thereto, were used by children as a playground. The tractor was attractive to and dangerous to children. Previously, children had followed the tractor and had been warned not to be around it. After the tractor had been parked and left unguarded, the deceased, Lawrence Eugene Wilson, and other boys climbed onto the tractor and commenced to play thereon. Larry Halstead, a young boy of four years of age, who was with them, "disengaged the gears and brakes of said tractor by manipulating the hand levers controlling said portions of the tractor." The tractor commenced to roll down the hillside out of control. The boys were greatly frightened and the deceased, in attempting to climb *241 off the tractor as it rolled down the hillside was so badly crushed and mangled by the tractor that he died as a consequence thereof on July 12, 1941. The tractor could have been rendered safe and harmless to children of tender years, but this was not done. Damages were asked in the sum of $21,245. The allegations in the amended petition in the Halstead case are similar to the allegations in the second amended petition of the Wilson case, except only that it is alleged that Larry Halstead, a minor, four years of age, was injured while trying to escape from the Caterpillar tractor, and damages were asked in the sum of $10,161.20.
I. Counsel for the plaintiffs contend, and it is specifically alleged in the amended petitions that the Caterpillar tractor was engaged in work in connection with the water system and the gas system in the city. That, in a sense, is of course true. However, to determine the real nature of the work, all of the allegations of the petition must be construed together. It appears therefrom that the City was engaged in cutting down and lowering the grades of certain streets; that, in doing so, it uncovered and exposed pipes and conduits of the water system and the gas system, and in order to remedy that situation, it was necessary to excavate trenches in these streets to replace the pipes. The City was not permitted, at the risk of liability for defects, (Opitz vs. Town of Newcastle,
II. Law writers generally are against immunity from liability for torts on the part of governments, governmental divisions or governmental agencies, arguing that the burden of damage as a result of such torts should be distributed among the community at large, and that individual sacrifice in such case is not warranted. See E.M. Borchard, 34 Yale Law Journal 1-45, 129-143, 229-254, and article by Leon Green in 38 Illinois Law Review, page 355, and other articles mentioned at that place. In the annotation of 75 A.L.R. 1196, the author states that: "The whole doctrine of governmental immunity from liability for torts rests upon a rotton foundation." Still the author is compelled to admit that:
"it is a well-settled general rule in this country that a municipal corporation is not liable for the negligence of its officers, agents, or servants in the exercise of public or governmental functions, from which it derives no profit or advantage, as distinguished from corporate or proprietary functions, and that the rule of respondeat superior does not apply in such cases."
See 38 Am. Jur. 261; 37 Am. Jur. 727; also Annotations in 120 A.L.R. 1376. And in Niblock vs. Salt Lake City,
In 3 Dillon on Municipal Corporations (5th Ed.), 1807-1808, the author states that the power to open and improve streets is legislative in its origin. Edwin M. Borchard, in 34 Yale Law Journal, 229, states: "Probably no function of a municipal corporation is more `governmental' in character than the care of its highways, streets and bridges. In theory, therefore, the city should be immune from responsibility for negligence in such matters; and such was the common law." See also Salmond on Torts (9th Ed.) 298. The author in the Annotation in 120 A.L.R. 1381, speaking of injuries resulting from defects or obstructions in streets, states as follows:
"If liability or nonliability were made to depend upon the usual test of governmental or proprietary functions, it would seem clear that there would be no liability, as no activity of a modern municipality is more purely governmental than the maintenance of public streets. It seems highly artificial to say, as do some of the courts, that the maintenance of streets is a `ministerial' duty, and is not governmental in character."
In almost all the states, however, either under a statute or otherwise, municipal corporations are liable for damages for injuries sustained by reason of defects in streets. See 7 McQuillin, Municipal Corporations, Section 2904. We followed the rule generally prevailing in the country in Opitz vs. Newcastle,
In 6 McQuillin, supra, Section 2793, the author states: "In constructing and improving public streets and highways, the municipal corporation acts in a governmental capacity and is not liable for negligence." And that such work is done in a governmental capacity is held (limiting our citations to one from any jurisdiction) in Municipal Bond Co. vs. City of Riverside,
III. Counsel for petitioners, however, contend that even though the city was engaged in a governmental function, it is nevertheless liable for the negligence in this case in view of the fact that the Caterpillar tractor was an attractive nuisance. The case of Reichvalder vs. Borough of Taylor,
"Justification for the principle is usually based on the theory that the setting up of a situation or object attractive to minors of tender years is an implied invitation to enter. Certainly the doctrine has as its motivating force sentiment rather than pure reason. However, admitting all this, it must contain some vital and sound force or it would not have made the headway it has. Those courts which have gone the longest distance describe their rule as the humane rule and at the same time refer to the less radical rule as the hard, or Draconian, rule. Much as any court dislikes being accused of lack of humanity, there is a clear duty to avoid being carried away by sentiment. While the courts and legislatures have shown a decided tendency to give additional safeguards to minors of tender years, the responsibility for their care is placed by nature upon their parents."
Burdick on the Law of Torts, (4th Ed.), page 563, after reviewing a number of authorities, came to this conclusion: "It is quite apparent, therefore, that the tide of judicial opinion is setting strongly against the doctrine of Railroad Company v. Stout. (turntable case). This has been admitted by one of the most enthusiastic advocates of the doctrine." We have referred to the last two authorities merely for the purpose of shedding light on the question as to whether or not liability for negligence in cases of attractive nuisances is always imperative. A number of authorities have held that it is not. It is stated in 38 Am. Jur. 283:
"The doctrine of attractive nuisance applies to municipal corporations in so far as it is applicable in those cases in which municipal corporations are held to be liable for negligence, but, of course, can have no application in cases in which the negligence occurred or the attractive condition was created in the exercise of a governmental function."
In note in 36 A.L.R. 153, it is stated: "A municipal corporation cannot be held liable on the theory of attractive nuisance, where the nuisance was created in the exercise of a governmental function." The following authorities are cited: Hibbard v. Wichita (1916)
"This is a mistaken correlation of distinct and independent rules. When a city creates a nuisance, it is *249 not exercising a governmental function, but is doing something forbidden by law. When an object is of a construction not forbidden by law, and in a place authorized by law, it is impossible that it should be a nuisance. It is not unlawful to use dump wagons. If mere averment or proof that a useful implement or vehicle was attractive to children would make its use on the streets unlawful, and its presence a nuisance, most of the useful vehicles, implements, and appliances must be withdrawn from the service of mankind. An automobile, a carriage, or a dumping wagon is each attractive to and dangerous to children, and often dangerous even to adults. But that does not make either when in legitimate use a nuisance in the public street."
It would accordingly seem that the weight of authority is against the holding in the Pennsylvania case of Reichvalder vs. Borough of Taylor, supra.
That the unfortunate accidents to the children involved in this case are to be deplored goes without saying. That there is a great deal of merit in the contention that immunity from liability for negligence on the part of governments and governmental agencies should be abolished cannot be questioned. But whether the courts should do so on their own motion is a matter of grave doubt. While change and stability in the law are forces forever contending with each other, stability in the holdings is expected, if not required, of the courts. Changes made by them from time to time in the law are not surprising only if made merely interstitially. *250 Hence, we naturally hesitate to make a radical change, on our own motion, in the rule of the common law applicable herein, howsoever much we may dislike the rule. To do otherwise would, we fear, go beyond our judicial prerogative. That the rule of immunity from liability in cases like this is not wholly devoid of merit seems to be indicated by the persistent adherence thereto by the courts of England and of many of the states of this country. Whether these merits are outweighed by its demerits is a question which, it would seem, should be settled by the power which controls municipalities in the state and which empowers them to make provisions for the payment of claims which should be paid by them. Judge Wolfe, who disliked the rule of immunity in cases of negligence on the part of municipal agents, stated, in a concurring opinion in the Utah case of Niblock vs. Salt Lake City, supra, as follows:
"Realistically speaking, the state should be free from the vexatious suits based on fictitious grounds which might spring into abundance were the immunity removed. Therefore, the matter of lifting immunity is, perhaps, properly the matter of legislation."
Note a similar tone in the case of Orgeron vs. Louisiana Power and Light Company,
The judgments of the district court in the cases herein will be affirmed.
RINER, C.J. and KIMBALL, J. Concur. *251