Ryder v. La Grande

Mr. Justice Bean delivered the opinion of the court. The first question raised upon this appeal is the same as that in the case of Coleman v. La Grande, post, p. 521 (144 Pac. 468), in which an opinion was this day rendered. It is contended that under its charter the City of La Grande is not liable for a tort. [229] As to such question, that opinion will govern in the case now under consideration. The defendant city by a demurrer to the complaint, a timely motion for a nonsuit, and a requested instruction to the jury raises the further question that the City of La Grande in opening and building streets, constructing sidewalks, and keeping the same in condition for travel is exercising a governmental function, and therefore is not liable in an action for negligence in sucb work. It was stated in Esberg Cigar Co. v. Portland, 34 Or. 287 (55 Pac. 962, 75 Am. St. Rep. 651, 43 L. R. A. 435), a case which has ever since been followed, that: ‘ ‘ There is a well-established distinction made by the authorities between the liability of a municipal corporation for the acts of its servants, agents, officers or employees, done in the exercise of powers and duties granted to or imposed upon it as a mere agency of the state and performed exclusively for public governmental purposes, and acts done in the exercise of powers granted to or privileges conferred for its own profit.” In 6 McQuillin, Mun. Corp., Section 2634, it is stated thus: “It is equally well settled that a municipality acts ministerially in constructing and repairing public improvements or work, including streets, and hence is liable to persons injured by negligence in the performance of such duties.” In Giaconi v. Astoria, 60 Or. 12, 30, 34 (118 Pac. 180, 184), after a thorough discussion of the question and the collaboration of many authorities, Mr. Justice Burnett states the rule thus: “A municipal corporation is not liable for mere consequential injuries resulting from ordinarily careful administration of a reasonably prudent plan of [230] street improvement devised by the municipality in its governmental capacity; but, in the execution itself of any public works, the city acts ministerially, or, in the words of the statute, ‘in its corporate character and within the scope of its authority,’ and for its negligence or maladministration in that relation, resulting in an injury to the rights of another, it is liable in the same way and for the same reason as a natural person or private corporation would be under the same circumstances of executive management.” 1. In the case at bar the additional question for determination is whether the city, in the construction and maintenance of a sidewalk, is acting in a governmental capacity by virtue of certain attributes of sovereignty or is performing a purely ministerial duty pertaining to its private, corporate purposes. Under the former conditions the city’s functions are political and governmental, and no liability attaches to the municipality for the acts or omissions of its officers or agents acting in good faith. In the latter character above referred to, that is, in the exercise of its purely municipal functions, a city stands upon the same plane as a private corporation, and is held to the same responsibility for injuries resulting from the negligence of its officers, agents and employees acting within the scope of their authority: 28 Cyc. 1258. 2. In the consideration and passing or rejecting of resolutions and ordinances pertaining to the opening and improving of its streets, the council of the City of La Grande acts in a legislative or governmental capacity. In the actual construction and maintenance of streets and sidewalks, the city, acting by servants employed by its officers with the authority of the municipality, is engaged in a purely ministerial duty, and is liable to respond in damages for an injury to plaintiff caused by the negligent act or omission of [231] such officers or employees in improperly building tbe sidewalk and knowingly failing in its duty to keep tbe same in a reasonably safe condition for travel. Tbe case comes within tbe provisions of Section 358, L. O. L.; Section 37, Charter of City of La Grande. See, also, 4 Dillon on Mun. Corp., § 1665; Wagner v. Portland, 40 Or. 389, 394 (60 Pac. 985, 67 Pac. 300); Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287); Giaconi v. Astoria, 60 Or. 12, 30, 34 (118 Pac. 180, 184); Hewitt v. City of Seattle, 62 Wash. 377 (113 Pac. 1084, 32 L. R. A. (N. S.) 632). Tbe evidence in tbe case tended to sustain tbe allegations of tbe complaint and to show negligence on tbe part of tbe city as alleged. Tbe judgment of tbe trial court will therefore be affirmed. Affirmed.