Moulton v. City of Fargo

Robinson, J. This is an appeal from a judgment for $500 recovered-against the city for- injury. The complaint avers that, pursuant to -duties by law imposed, the city kept and supervised a dumping ground; that plaintiff hauled to the ground a load of garbage consisting mainly of dry, loose paper, and dumped the same as directed by the city super* [504] intendent of the ground, and that, when dumping, a smoldering fire flashed up and burned him. The ease presents two questions, namely: (1) Is there evidence to sustain the verdict? (2) Is the city liable for the alleged negligence? As the evidence shows, by direction of the superintendent the plaintiff drove his load to the south and windward side of the dump, where there was no fire and no sign or indication of fire. There was a smoldering fire 30 or 40 feet to the north, but as a brisk wind blew from the south the smoldering fire was not in the least dangerous and it was not the cause of the injury. The plaintiff had his load about two thirds .off, and was in a stooping position when in a twinkling a flame flashed up and burned him. lie says: “All at once it suddenly came like an electric flash.” Of course to produce the flame there must have been some adequate cause. There must have been an explosive gas or some material saturated with kerosene or benzin; there must have been some flame or fire such as a burning match or a lighted cigar. The chances are ten to one that such material was in the load of garbage, and that by accident in throwing out the garbage a stray match was ignited. It is certain such an explosion was never caused by the burning of papers or by any smoldering fire, and the inflammable gaseous material which caused the explosion must have been contained in the load. Hence the injury was not caused by the negligence of the city or its superintendent. In regard to the liability of a city for negligence in the keeping of a dumping ground, the decisions are in conflict. By statute the city has power “to regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage, or any other offensive matter in, and to prevent injury to, any street, avenue, alley or public ground.” It may regulate the same by rules and ordinances, and doubtless, to accommodate the public, it may establish and maintain a free dumping ground. That is a matter of discretion, and the better rule is that the city is not liable for negligence in maintaining a free dumping ground for the public good and as a matter of public service and convenience. The rule is that no legal obligation arises from the offer and acceptance of a gift or gratuity. There is reason and wisdom in the adage which forbids the looking of a gift horse in the mouth. When a city goes to the expense of keeping a free dump, it is done either as a governmental duty and function [505] or as a pure accommodation to tlie dumpers and the public. It is a mere gratuity and convenience for the benefit of the dumper. He does not have to use it. He may haul his garbage out of the city. Hence, the law does not give an action for negligence in superintending or in failing to superintend a gratuitous dump. A city is under no obligation to provide a dumping place. It may do it and leave the place without any superintendent, or it may employ a superintendent without incurring liability for his absence or mere neglect. The greater power includes the less. By employing a superintendent to aid or direct the dumpers, a city does not insure them against accidents. Judgment reversed and action dismissed. Bruce, Ch. J., and Christianson and Biruzell, JJ. We concur in the reversal of the judgment, but we express no opinion as to the origin of the fire. In our judgment this case is controlled by the case of Montain v. Fargo, 38 N. D. 432, L.R.A.1918C, 600, 166 N. W. 416, Ann. Cas. 1918D, 826. Grace, J. I dissent