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(- La. -, 99 So. 419.) proaches, appurtenances, etc., nec- Whatever question there may essary thereto; that such bridges, have been in the beginning as to tunnels, etc., should be and remain the city's right to create the coman "integral part of the Public Belt mission, or to operate a public belt Railroad System

which railroad system, the same has been said system the city of New Orleans removed by the Act 179 of 1908 and is hereby authorized to extend and the amendment to the Constitution, operate in and beyond the parish in effect ratifying the action of the of Orleans," and the powers of the council. We think there could be public belt railroad

railroad commission but little doubt that, if the city of were declared to be as provided in New Orleans or any other municithe Act 179 of 1908, and to include pality was authorized to build and said bridges, tunnels, etc., as well operate a steam railroad system as all other property of the system. for the private benefit of its inhabThe said amendment further pro- itants and for profit, the same would vided : “(4) The public belt rail- be done under its municipal or corroad commission, under such terms porate powers, and not as a governand conditions as it may deem ad- mental duty. visable, shall have the right to "While a municipal corporation, switch, handle or convey, in con- in performing or omitting to pertinuous movement, for any rail- form a duty imposed upon it as an road, trains over such bridges or agent of the state in the exercise through such tunnels and over the of strictly governmental or state main lines of the Public Belt Rail- functions, is not liable to private road to the depot or yard of said action on account of injuries resultrailroad or to any union passenger

ing from the wrongful acts or negdepot or union terminal of the Pub- ligence of its officers and agents, lic Belt Railroad System; it being yet, in every state except South understood that the sole purpose of Carolina, it is the settled rule that this provision is to facilitate the a municipality is liable at common movement of trains entering the law for its torts in the performance city of New Orleans on the east or or nonperformance of municipal or west bank of the Mississippi river. corporate duties, as distinguished Under no condition can the public from governmental duties. In othbelt railroad commission grant er words, where its officers or servswitching privileges to any railroad ants are in the exercise of power over the Public Belt Railroad Sys- conferred upon the municipality for tem."

its private benefit or profit, and Later provisions dealing with the damages result from their negliPublic Belt Railroad System appear gence or misfeasance, the municiin the Constitution of 1921, but pality is liable to the same extent since the accident in this case hap- as in the case of private corporapened on the 23d of June, 1921, be- tions or individuals. fore that Constitution went into ef

"In so far as municipal corporafect, we shall not refer to them in tions exercise powers not of a govthis opinion.

ernmental character, 'voluntarily Having thus shown the nature assumed powers intended for the and origin of the defendant, and private advantage and benefit of the manner in which it operates the locality and its inhabitants, and functions, as well as the limita- there seems to be no sufficient reations placed upon it, can it be said son why they should be relieved to be exclusively a governmental from that liability to suit and measagency, and, if not, was the work in ure of actual damage to which an which it was engaged at the time individual or private corporation bf the accident such as to render it exercising the same powers for purliable for the death of plaintiff's poses essentially private would be son?

liable;' and it is held that, while acting in this private capacity, a was for the protection of the bondmunicipality is liable for negligence holders and to insure a continuance to the same extent as a private cor- of its operations for the benefit of poration or individual, and is liable the people of the community. Howto its employees to the same extent ever, this has not had the effect of as other employers.. And a making it a state agency, solely municipality will not be permitted charged with the discharge of a to say whether or not it shall be governmental function; nor has held liable for personal injuries re- there been any provision exempting sulting from negligence in the per- it from the character of liability formance of such duties, nor to im- here claimed. Its nature and purpose unreasonable restrictions upon pose still remain the same, i. e., that the rights of injured persons to it is a department of the city of bring actions against it for dam- New Orleans, discharging a municages therefor." 6 McQuillin, Mun. ipal or corporate function for priCorp. p. 5394, § 2622, and authori. vate gain and for the private beneties cited in footnote.

fit and advantage of its inhabitants. See also New Orleans v. Kerr & We see nothing in this case, and Gally, 50 La. Ann. 413, 69 Am. St. no pertinent authority has been citRep. 442, 23 So. 384, and authori- ed, to take it out of the ordinary ties therein noted.

class for which the city through the The duty of operating a public public belt railroad commission is belt railroad through a commission liable for the accident, if due to the

was voluntarily as- fault of the defendant, its agents, Municipal corporation-lia

sumed by the city or employees. bility for injury of Orleans in its inflicted in oper

For the reasons assigned, the original ordinance, judgment of the Court of Appeals

heretofore men- is annulled and set aside, the exceptioned, which was subsequently ap- tion of no cause of action is overproved and ratified by the legisla- ruled, and this case is remanded to ture and constitutional amendment.

the said court to be decided upon its This was done solely for the private

merits; defendant to pay the costs benefit of the city and its inhabit

of this application, and all other ants. It is true that the said act and amendment have subsequently

costs to await final judgment. hedged it about with certain re- Rehearing denied by the whole strictions and limitations, but this court March 3, 1924.

ation of belt railroad.

ANNOTATION.

Liability of municipality for tort in construction or operation of municipally

owned railroad or street railway.

When a function is undertaken by a in a proprietary, rather than a governmunicipality in its private or pro- mental, capacity, so as to render it prietary capacity, for the profit, bene- liable for torts to the same extent that fit, or advantage of the corporation an ordinary railroad company or indior of the people who compose it, rather vidual would be at least, in the abthan for that of the public at large, sence of some special exemption. it is liable for the negligence of its DAVIS v. NEW ORLEANS PUBLIC BELT R. employees to the same extent and un- Co. (reported herewith) ante, 1303, der the same conditions as a private overruling dicta to the contrary in corporation. 19 R. C. L. 1109.

Jones v. New Orleans (1918) 143 La. The general view is that a munici- 1074, 79 So. 865; Green v. Amarillo pality, in constructing or operating (1922) Tex. Civ. App. -, 244 S. W. a railroad or street railway, acts 241; Tutor v. Amarillo (1922) Tex. Civ. App. 244 S. W. 632; Tobin v. same acts.

The city, in the Seattle (1923) Wash. 221 Pac. operation of a street railway system, 583. And that a city, in constructing, was unquestionably acting in its prioperating, and leasing a subway, is a vate and corporate capacity, as disrailroad corporation carrying on а tinguished from its acts of governbusiness enterprise in a proprietary mental character.” This decision was rather than a sovereign capacity, see followed in Tutor v. Amarillo (1922) Re Rapid Transit R. Comrs. (1909) 197 Tex. Civ. App. —, 244 S. W. 632, N. Y. 81, 36 L.R.A.(N.S.) 647, 90 N. E. where the injury complained of was 456, 18 Ann. Cas. 366, and Sinsheimer alleged to have been caused by the v. Underpinning & Foundation Co. negligent construction and operation (1917) 178 App. Div. 495, 165 N. Y. of a municipal street railway. Supp. 645, affirmed without opin- And, again, in Tobin v. Seattle ion in (1919) 226 N. Y. 646, 123 N. E. (Wash.) supra, in holding that a mu889, both of which involved liability nicipality owning and operating a for damages arising from proper con- street railway was liable for injuries struction.

caused by the negligence of its emFor instance, it has been said that ployees, the court said: “We cannot if a municipality owns a railroad, and agree with the respondent's contention operates it for gain, there is no ques- that the alleged acts of negligence tion but that it is liable for negli- were those required to be done by it gence in connection therewith.” Mc- while acting in a governmental capacQuillin, Mun. Corp. § 2685.

ity. The city owned and operated And the majority of the cases sup

this street railway system in its proport this conclusion,

prietary capacity, and whatever duty Thus, in Green v. Amarillo (1922) it owed to its patrons would be those

Tex. Civ. App. 244 S. W. 241, which the law imposes upon it while in holding that a municipality owning acting in its private or proprietary and operating a street railway system capacity. ... Generally speaking, operated the same in its private or a municipality which owns and opercorporate capacity, as distinguished ates a street railway owes the same from its governmental capacity, so duties to its patrons that a private that it was liable for the negligent owner and operator would owe to his injury of a passenger, the court said: patrons under the

circum“The modern city performs functions stances." Applying this rule, the of a dual nature. Primarily it is a court held that the municipality was governmental agency, clothed with liable for negligence in not properly limited powers of sovereignty, exer- lighting a stopping place between cised for 'purposes essentially public street intersections, but that it was -purposes pertaining to the adminis- under no duty to mark out safety tration of general laws made to en- zones or to keep a watchman stationed force the general policy of the state.' at a stopping place. The city may be granted the same im- And in the reported case (DAVIS v. munity against claim for damages for NEW ORLEANS PUBLIC BELT R. Co, ante, its acts done in its governmental 1303), it

was expressly held that capacity as is enjoyed by the general the city of New Orleans, in operating government in such matters. Other the Public Belt Railroad, was exeracts of the city are done in the cising a municipal or corporate funcexercise of powers not strictly govern- tion for private gain, and not a governmental, but 'voluntarily

‘voluntarily assumed mental agency, and, therefore, that it and exercised for the private ad- was liable for the killing of a person vantage and benefit of the locality at a street crossing resulting from and its inhabitants.' For its acts done negligent operation of a train by its in this latter capacity, the city, in the agents or employees. In reaching this absence of some special exemption, is conclusion the court distinguished liable to the same extent as any private Jones v. New Orleans (1918) 143 La. person or corporation performing the 1074, 79 So. 865, wherein it was held

same

that the city was not liable for the of which classes does the operation of negligent killing of a person by a a street railway belong, such operapoliceman employed in guarding the tion being private rather than govern. property of the same railroad involved mental. Green v. Amarillo (1922) in the DAVIS CASE, on the ground that Tex. Civ. App. — 244 S. W. 241. To in the latter case the negligent em- the same effect is Tutor v. Amarillo ployees were discharging the ordinary (1922) - Tex. Civ. App. - , 244 S. W. duties connected with the operation of 632. the railroad, whereas in the Jones On the other hand, it has been held Case the negligent servant was a duly that the city of Boston is not liable appointed police officer, and was clear- for the negligent injury of an emly acting in guarding the railroad ployee while constructing its municiproperty as an agent for the discharge pal subway, on the ground that the of the governmental duties of the city work was a public one, even assuming out of which no liability in damages that the work was done under the can arise. However, the court in the supervision of officers who were its Jones Case, as a matter of fact, placed servants. Thus, in Mahoney v. Boston its decision upon the ground that the (1898) 171 Mass. 427, 50 N. E. 939, 4 city, in operating the railroad, was Am. Neg. Rep. 395, where the defendengaged in a purely governmental ant city, acting through the Boston function, and, in so far as the argu- Transit Commission, constructed a mument went on that point, is expressly nicipal subway to be leased for street disposed of by the court in the DAVIS

railway purposes, it was held that the CASE on the theory that such matter work was a public one, and that the constitutes obiter, since the finding commissioners were public officers that the servant complained of was a charged with the performance of pubduly appointed police officer rendered lic duties; but the court said that if it unnecessary for the court to deter

the work, though public, was partly mine the capacity in which the city commercial in its character, and was operated the railroad.

for the benefit of the city, and the com And in Coughlan v. Cambridge missioners acted as its servants, the (1896) 166 Mass. 268, 44 N. E. 218, city would be liable under the Federal where defendant city, in making a. Employers' Liability Act for the neglifill around its waterworks, hired a gence of its foreman, and discussed temporary railroad, train, and crew, the question as though the commisand was regarded as operating a rail- sioners were the servants of the city. road through its own servants, it was Morton, J., said: "But, assuming that held that it was liable under the

they could be regarded as in some Massachusetts Employers' Liability

sense the servants of the city, we Act (Stat. 1887, chap. 270) for in

think that the element of commercial juries to a servant caused by the negligent operation of the hired train, the

advantage, or pecuniary benefit to the court also having found that such act

city, is not such as to render it liable applied to cities.

for the negligence of the foreman. As And it has been held that, in the ab

already observed, the work is intended sence of permissive constitutional pro

to promote the convenience of the pubvision, a municipality cannot, by virtue

lic generally. The statute requires of a statute authorizing it to operate a

the city to apply any rents or compenstreet railway and to provide for ex

sation which it may receive from the emption from liability for negligent use of any of the 'subways, tunnels, operation, so exempt itself, since the or adjacent locations, or for any use legislature cannot so delegate author- of any lands or rights taken under ity to a municipality to enact a law authority' of the act, first, to meet exempting itself from such liability, any deficiency in sinking-fund requirebut is confined to delegation of author- ments for the bonds; second, to meet ity as to matters of local self-govern- interest on the bonds; and, third, to ment and police regulations, to neither use the surplus, if any, as a part of the general revenue of the city for the commission were neither servants nor maintenance of the public parks. The agents of the city, but were public city can use the rent or compensation officers, so that the city was not liable which it receives only as thus directed. for their negligence. And see McFor aught that appears, the legislature Govern v. Boston (1918) 229 Mass. may direct it to be used in some other 394, 118 N. E. 667, wherein the court manner. The city has no general con- again discussed the relation between trol over it. The undertaking, so far the city and commissioners constructas the city is concerned, lacks the ing a municipal subway. features of one which is partly com- The decision in Dilluvio v. New York mercial in its character, and intended (1911) 73 Misc. 122, 132 N. Y. Supp. for the benefit of the city. The sur- 531, that a municipality could not be plus, if any, is to be used for the sup

held liable in an action to recover port of the public parks; in other damages for personal injuries to a words, for the general public benefit, passenger injured through the negliwhich has some tendency to show gence of a city employee in operating that the legislature regarded the a train, was upon the ground that it work as one of general public utility. had no authority to construct or operThe case differs, therefore, from those ate the railroad, the theory being that cases in which it has been held that a city cannot be held liable for the unwhen a city or town engages in a pub- authorized acts of its officers and emlic undertaking which is partly com- ployees. mercial in its character, and over the In England, where the municipal construction and management of operation of tramways and light railwhich it has full control by means of ways is quite common, it seems that agents or officers appointed or elected operating municipalities are liable .by it, and the benefits of which it re- both for negligent construction and ceives, it is liable for injuries sus- operation, but that there are certain tained in consequence of the negli- statutes which apply to municipalities, gence of one employed in doing the and which, while not exempting them work, even if it be conceded that for from liability for torts, contain prothe time being there is a surplus, and visions protecting them to a certain that the city is benefited by having it extent-such, for example, as the Pubapplied to the maintenance of the lic Authorities Protection Act of 1893, parks, and being relieved to some ex- which establishes a short period of tent from the obligation to raise by limitations and contains other benetaxation money which it otherwise ficial laws. See Parker v. London would be obliged to raise. ... The County Council (1904) 2 K. B. (Eng.) benefit is a mere incident of an un- 501, 73 L. J. K. B. N. S. 561, 68 J. P. dertaking which is public in its nature, 239, 52 Week. Rep. 476, 90 L. T. N. S. and is carried out by public officers 415, 20 Times L. R. 271, 2 L. G. R. 662, over whom the city has no control, and Lyles v. Southend-on-Sea Corp. [1905] no case, we think, has gone so far as 2 K. B. (Eng.) 1, 74 L. J. K. B. N. S. to hold a town or city liable under 484, 69 J. P. 193, 92 L. T. N. S. 586, 21 such circumstances.” And in Murphy Times L. R. 389, 3 L. G. R. 691-C. A., v. Hugh Nawn Contracting Co. (1916) and Hutchins v. London County Coun. 223 Mass. 404, 111 N. E. 890, it was cil (1915) 85 L. J. K. B. N. S. (Eng.). again held that the building of a Bos- 1177, 114 L. T. N. S. 377, 80 J. P. 193, ton tunnel was a public work, and that 14 L. G. R. 313, 60 Sol. Jo. 156, 32 the members of the Boston transit Times L. R. 179-H. L. G. J. C

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