Brink v. City of Grand Rapids

Grant, J. {after stating the facts). 1. Thecharterof the defendant city provides for a board of fire commissioners, which is entrusted with the entire control of the fire department. It also has a board of public works, which is authorized to cause its inhabitants to be supplied with water, to'furnish the same at established rates, and to [474] construct all necessary works. Counsel do not disagree as to the law. The learned counsel for the plaintiff admits that the doctrine that— “ A municipality, in the absence of a statute to the contrary, is not responsible for injuries caused by the negligence of its employés engaged in so-called governmental functions, is too well established in this State to be questioned at the present time. * * * “ Without doubt, according to the weight of authority, a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to-the extinguishment of fires.” Under this concession, which is undoubtedly the law,, the citation of cases in this court or any other jurisdiction is unnecessary. Counsel for both sides have shown great diligence in examining and citing cases, not so much for the purpose of stating the law as of finding facts similar to those in this case, and thus showing, the one that it is within, and the other that it is without, the rule. The question becomes one of fact. The court found, and so instructed the jury, that this hydrant had never been used for any other than fire purposes; that no-water had ever beén sold by the city or used by it for any other purpose than for the extinguishing t of fires; that-the sole object of opening and flushing this hydrant was. for the purpose of removing sticks and stones which might have accumulated or been put there, so that in case of fire its use would not be obstructed. It was immaterial that these firemen opened and flushed other hydrants in the city for other purposes, such as purifying-the water, or that they rendered that service for the city or board of public works at the same time that they were-flushing the hydrants used exclusively for fire protection.. It was also immaterial for what purpose other hydrants, were used. All such testimony was therefore properly excluded. There was no evidence introduced showing475 that this hydrant had been used for other purposes, and no testimony offered for that purpose was excluded. The city had no pecuniary interest in establishing or maintaining this hydrant. It received no compensation for its use. It was maintained entirely by taxation upon the entire city, and its use was for the sole benefit of the-city. It was constructed, maintained, and used in a governmental capacity. Welsh v. Village of Rutland, 56 Vt. 228; Edgerly v. Concord, 62 N. H. 8; Fisher v. City of Boston, 104 Mass. 87. . 2. This action cannot be maintained under the statutory liability. The street was paved, was in good condition, and reasonably safe for travel. Its condition had nothing to do with the accident. The sole cause of the accident was the sudden flow of the water, which frightened the horse. Judgment affirmed. Montgomery and Hooker, JJ., concurred with Grant, J.