the walls of the trench sufficiently to make it a reasonably safe place for plaintiff to work. The court said: "It was a duty which defendant owed to plaintiff to furnish him a reasonably safe place in which to work. The superintendent of streets, as well also as the foreman in charge of the work, knew, or might have known had they discharged their duty, the unsafe condition of the bracing in this instance. "This duty is personal to the master, and if intrusted to a foreman, the negligence of the foreman is the negligence of the master.""

The court stated that the building of a system of sewers is for the private benefit of the corporation, and this may have had some influence upon the court in determining the question of the liability of the city. This question will be referred to later.

Mr. Jones, in his work on Negligence of Municipal Corporations, section 141, says: "But as soon as the corporation has determined to 592 construct a public work, it enters upon an undertaking which, in all its details, should be subordinated to the rule requiring the use of care, for the work is then ministerial. There has been much discussion whether a municipal corporation will be liable for a defect in the plan of a public work, and many authorities have held broadly that it would not. The word 'plan,' however, in the cases, as is clearly shown in a recent case in the United States supreme court (Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. Rep. 923, 30 L. ed. 75), where this question was presented, is ordinarily used to describe the general plan or system of work, and where it is so used, nothing more would seem to be decided than that the general features of the system of drainage to be adopted are to be settled by the corporation, and cannot be reviewed by the courts. Some authorities have gone much further than this, but it is believed to be contrary to principle and the weight of authority to maintain that, where in the performance of a public work, there is any breach of the duty to exercise care, an action by one who is damaged will not lie.”

In McClure v. City of Red Wing, 28 Minn. 186, 194, 9 N. W. 767, it was said: "The duty of providing drainage or sewerage is in its nature judicial or legislative, and consequently a municipal corporation is not liable for mere nonaction in failing to perform it. But that is not this case. It has also been held that, in adopting the general plan of an improvement, a municipality performs a legislative duty, whereas the manner of executing it is a ministerial one. In the case at bar, if it turned upon whether the duty was judicial or ministerial, we think the

correct rule to apply would be that, in deciding upon the expediency of laying out this street, or upon the route thereof to be adopted, or the grade to be established, the city was exercising judicial duties, for errors of judgment in the performance of which they would not be responsible; but, having determined these matters, and having decided it expedient to obstruct the natural channel of these waters, 593 and to divert them into another and artificial channel, then, in executing and carrying this out, including the construction of the sewer and fixing upon its size or capacity, they were exercising purely ministerial duties, in the performance of which they are held to the exercise of reasonable care."

In Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. Rep. 923, 924, 30 L. ed. 75, the court used this language: "The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall be built, or what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory; and the exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land. . . . . But the construction and repair of sewers according to the general plan so adopted are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured."

The same principle was announced in Thurston v. City of St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Judd v. Hartford, 72 Conn. 350, 77 Am. St. Rep. 512, 44 Atl. 510; McCombs v. Town Council of Akron, 15 Ohio St. 474; Barton v. City of Syracuse, 36 N. Y. 54; Jenney v. City of Brooklyn, 120 N. Y. 164, 24 N. E. 274.

There is a line of authorities which hold that municipal corporations are liable for the negligent performance only of such ministerial public duties as are 594 imposed upon them by law, but not for the negligent performance of assumed duties which are permissive only. To this doctrine we do not agree. The performance of public duties which are imperative upon the corporation, as well as those which are merely optional, is for the

same general purpose the general welfare of the community. When a municipal corporation assumes the performance of a public duty which was permissive only and enters upon the discharge of such duty, and through the negligent performance thereof by its authorized agents one is injured either in person or property, the corporation cannot escape liability by saying that the performance of this duty was not imperative. The principle here followed is well stated in Findley v. Salem, 137 Mass. 171, 50 Am. Rep. 289, and the reasoning therefor we think.sound.

Many authorities may be found among the adjudicated cases where the liability of municipal corporations was based upon, and would seem to be limited to, instances where the duty negligently performed lay in the management of property for which the corporation derived an immediate income. Such distinction cannot be sustained by reason. The liability springs from the duty which is due from every person, whether natural or artificial, to exercise such reasonable care in the conduct and management of his property that it will not unnecessarily result in injury to another. A municipal corporation in control of public property is not exempt from this rule when discharging a ministerial duty. Mr. Jones, at section 150 of his work on Negligence of Municipal Corporations, says: "The obligation to exercise care does not arise between individuals because one pays money to another 595 and is therefore entitled to its exercise. It springs, as has been said, from the right of personal safety, and is wholly removed from the question of pecuniary profit. So between corporations, whether public or private, and individuals, the duty is not dependent on the payment of money. It comes into existence from the same right of personal safety. And it is not consistent with principle to hold that duty exists to exercise care in respect to remunerative public property, but that no such obligation arises in respect to public property from which no income is derived.

"Moreover, the weight of authority does not justify a distinction of this character. And an examination of the cases upon this question will sustain the conclusion that municipal corporations are responsible in damages for all injuries occaioned by their negligence in the management or care of public property, irrespective of the question whether an income is derived from it.”

In the care and management of the fire station the city was performing a purely ministerial duty. It was incumbent upon

it to furnish its employés in charge of this property a safe place in which to work, and if the plaintiff was injured through the negligence of the city's agents in failing to perform this duty, it was liable for such injuries.

The judgment of the court below is reversed, with instructions to overrule the demurrer to the petition.

All the justices concurring.

The Liability of Cities for the negligence and misconduct of their officers and agents is discussed at length in the monographic note to Goddard v. Harpswell, 30 Am. St. Rep. 376-413. Generally speaking, municipal corporations are not liable for failure to exercise, or for errors in exercising, their legislative or judicial powers; but they are liable for neglect to perform, or for improper or unskillful performance of their ministerial duties: Mayor etc. of Dalton v. Wilson, 118 Ga. 100, 98 Am. St. Rep. 101, and cases cited in the cross-reference note thereto; Simpson v. Whatcom, 33 Wash. 392, 99 Am. St. Rep. 951. That the driver of a hose-cart connected with the fire department assumes the risks usual to his employment, but not the risks of the insecurity of the streets resulting from the culpable negligence of the city, see Farley v. Mayor of New York, 152 N. Y. 222, 57 Am. St. Rep. 511.

Am. St. Rep., Vol. 105-18

CASES

IN THE

COURT OF APPEALS

OF

KENTUCKY.

THOMPSON v. BROWN.

[116 Ky. 102, 75 S. W. 210.]

WILLS-Charitable Bequest-Certainty in Trust.-A will de vising the testatrix's property to her executor to be by the latter distributed to the poor in his discretion" creates a gift sufficiently definite to be enforceable under a statute requiring that charitable gifts shall point out with reasonable certainty the purpose of the charity and the beneficiaries thereof. (p. 195.)

Thompson & Spaulding, for the appellants.

H. P. Cooper, for the appellees.

104 BURNAM, C. J. The eleventh clause of the will of Elizabeth Thompson, who died in September, 1897, reads as follows: "I will and direct that my house and lot in Raywick, Kentucky, be sold at such terms as my executor may deem best, and I will that the proceeds together with whatever other estate I may have after the payment of the aforesaid bequest and funeral expenses shall be collected by my executor, and by him distributed to the poor in his discretion." The only question for decision upon this appeal is whether the gift in this clause is sufficiently definite to be enforced under section 317 of the Kentucky Statutes of 1899, which requires that such gifts shall point out with reasonable certainty the purpose of the charity and the beneficiaries thereof. Very different rules from those that are applied in establishing and administering private trusts will be applied in order to give effect to the intention of a donor to establish a public charity. In discussing this question,