Gillespie v. City of Lincoln.

Chas. O. Whedon, for plaintiff in error:

Liability of a city for the acts of its employes "is based upon the right which the employer has to select his servants, to discharge them if not competent, and to direct them while in his employ." (Kelly v. New York, 11 N. Y., 432.) It is the duty of a municipal corporation to keep its streets in a reasonably safe condition for public use (Lincoln v. Walker, 18 Neb., 251; Same v. Gillilan, Id., 119; Same v. Holmes, 20 Id., 39; Same v. Woodward, 19 Id., 259; Plattsmouth v. Mitchell, 20 Id., 230; Hutson v. New York, 9 N. Y., 163; Todd v. Troy, 61 Id., 506; Clemence v. Auburn, 66 Id., 334; Evans v. Utica, 69 Id., 166; Niven v. Rochester, 76 Id., 619; Weed v. Ballston, Id., 329; Saulsbury v. Ithaca, 94 Id., 27; Dewire v. Bailey, 131 Mass., 169), and the agents of the corporation are bound to exercise an active vigilance in the performance of that duty. (Todd v. Troy, 61 N. Y., 506; Atlanta v. Perdue, 53 Ga., 607; Rosenberg v. Des Moines, 41 Ia., 415; Chicago v. Hoy, 75 Ill., 530; New York v. Bailey, 2 Denio [N. Y.], 433.) One of the duties of a municipal corporation is to use reasonable care in the conduct of any work which it undertakes. (Chicago v. O'Brennan, 65 Ill., 160; Chicago v. Turner, 80 Id., 419; Freeport v. Isbell, 83 Id., 440.) When the city has the appointment and supervision of the employes, and the duty to be performed is for its benefit, it is liable for their negligent acts. (New York v. Bailey, 2 Denio [N. Y.], 433; Tormey v. New York, 12 Hun [N. Y.], 542; Walsh v. New York, 41 Id., 299.) So where the duty is imposed on the city and the officers or departments are simply made by the charter agents of the corporation. (Martin v. Brooklyn, 1 Hill [N. Y.], 545; Niven v. Rochester, 76 N. Y., 619; Barnes v. Dist. of Col., 91 U. S., 540; Ehrgott v. New York, 96 N. Y., 264; Groves v. Rochester, 39 Hun [N. Y.], 5. The municipal corporation is as much subject

Gillespie v. City of Lincoln.

as a private citizen to the usual rule, sic utere tuo ut alienum non lædas. (Goodloe v. Cincinnati, 4 O., 513; Rhodes v. Cleveland, 10 Id., 160; McCombs v. Town Council, 15 Id., 479.)

E. P. Holmes, contra:

It is the uniform rule, as established by a long line of decisions, that there is no liability on the part of a municipality for injuries occasioned by the negligent act of members of its fire department. (Dillon, Mun. Corp., sec. 976; Grube v. St. Paul, 34 Minn., 402; Fisher v. Boston, 104 Mass., 94; Wilcox v. Chicago, 107 Ill., 334; Greenwood v. Louisville, 13 Bush [Ky.], 226; Wheeler v. Cincinnati, 19 O. St., 19; Hayes v. Oshkosh, 38 Wis., 314; Condict v. Jersey City, 46 N. J. Law, 157; Hafford v. New Bedford, 16 Gray [Mass.], 297; Jewett v. New Haven, 38 Conn., 368; Hurford v. Omaha, 4 Neb., 336; Veazie v. China, 50 Me., 526; N. Y. v. Furze, 3 Hill [N. Y.], 612; Barney v. Lowell, 98 Mass., 570; Van Horn v. Des Moines, 63 Ia., 447; Ogg v. Lansing, 35 Id., 495; Yule v. New Orleans, 25 La Ann., 394.)

POST, J.

This case comes into this court on a petition in error. The error assigned is the sustaining of a demurrer by the district court of Lancaster county to the petition of plaintiff in error, the material part of which is as follows:

"That on and prior to the 29th day of May, 1889, the said defendant had an organized and paid fire department, and had and owned engines, hose, hose carts, ladders, wagons, trucks, and other apparatus for the use by, and which was used by, said defendant in its fire department in extinguishing fires.

"That said defendant then had and owned horses which were used by said defendant in drawing said wagons, trucks, hose carts, and engines to the place in said city where a

Gillespie v. City of Lincoln.

fire might be burning, and for other purposes; that among other apparatus the said defendant then owned a large truck, or wagon, upwards of twenty feet in length, which was used by the defendant in transporting about the city long ladders used by said fire department.

"That said defendant, at the time of committing of the wrongs hereinafter mentioned, had in its pay and employ one Peter Keykendall, who was under the direction and control of the defendant, and whose duty it was, under the direction of said defendant, to drive the team attached to said ladder truck, or wagon, about the city; and said wagon was not at the time herein before mentioned, May 29, 1889, supplied with any brake or lock, or other appliance, for stopping said wagon when in motion, or to assist the horses to said wagon attached in stopping the same; that the distance between the front and hind wheels to said truck or wagon was about eighteen feet; that said wagon or truck, when loaded with ladders and other apparatus, carried thereon, and with the driver thereon, weighed upwards of two thousand pounds.

"That Ninth street extends through said city from north to south and intersects and crosses P, R, and S streets in said city, and said Ninth street and said P, R, and S streets have for many years last past been public streets in said city, and on said 29th day of May, 1889, said Ninth street was paved with wood, and between S and P streets was a paved and smooth street, and from S to R street had a smooth and level surface and was free from obstruction and was paved with wood.

"That the said Peter Keykendall, under his employment, was by the defendant required to drive said ladder truck or wagon about the city, when no fires were burning which required to be extinguished by said defendant or said fire department, for the purpose of exercising the horses to said wagon attached, and was also required to drive said horses attached to said wagon when the same was heavily loaded,

Gillespie v. City of Lincoln.

on and along the public streets of the said city at a furious rate of speed and as fast as said horses could be made to run, without any regard whatever for the lives or safety of citizens of the city who might be upon the streets, and this when no fire or fires were burning which required the action of the defendant or its fire department to extinguish, for the sole and only purpose of exercising said horses.

"That on the 29th day of May, 1889, the said Peter Keykendall, then being in the employ of the defendant and acting under the orders and direction of the defendant, drove a span of large, high-spirited, and powerful horses, attached to said ladder truck or wagon, about the public. streets of said city for the purpose of exercising said horses. Said wagon or truck was loaded with ladders and other apparatus and the driver rode thereon, and said wagon with its load weighed upwards of two thousand pounds; that said wagon was not on said day supplied with any lock or brake or other appliances for stopping or assisting in stopping said wagon when in motion, as the defendant then well knew.

"That said Keykendall on said day drove said span of horses to said wagon attached as aforesaid on and along said Ninth street at a furious and dangerous rate of speed and as fast as said horses could be driven, when there was no fire burning which required the services of said fire department or any of its members or employes of said city to extinguish, but said horses were driven for exercise only; that Clark D. Gillespie, an infant of tender years, being then but six years of age, was at the time crossing said Ninth street near the place where said street intersects and crosses R street at the north side of said R street, and said span of horses were driven upon said Clark D. Gillespie and he was thrown upon the pavement and the front wheel of said wagon was driven over and across his body; that said boy, after being knocked down and run over by said horses and by one of the front wheels of said wagon, raised

Gillespie v. City of Lincoln.

his head and attempted to rise from the pavement when he was struck and run over by one of the hind wheels of said truck or wagon and was instantly killed. That the killing of said boy was caused by the driving over him of said. team and wagon as aforesaid.

"Plaintiff further says that at said time said team and wagon was not being driven to any fire which required to be extinguished, but was being driven on and along said street for the sole and only purpose of exercising said horses under the direction and orders of the defendant at a dangerous rate of speed, and were driven so fast that it was impossible for the said Clark D. Gillespie to escape being run over. That the said Clark D. Gillespie was the son of the plaintiff.

"That on the 22d of July, 1889, the plaintiff was by the county court of said Lancaster county duly appointed administrator of the estate of said Clark D. Gillespie, and gave the bond by said court required and took the oath by law required in such cases.

"That on or about the 22d of July, 1889, plaintiff presented to the city council his claim for damages sustained by the estate of said Clark D. Gillespie by reason of the killing of him, the said Clark D. Gillespie, together with the names of the witnesses and a statement of the time, place, nature, circumstances, and cause of the injury and damages complained of, which claim was verified by the oath of the plaintiff; that afterwards, and on or about the 12th of August, 1889, said claim was by the defendant and the mayor and council thereof, to which it was presented as aforesaid, rejected and disallowed.

"That by reason of the killing of said Clark D. Gillespie as aforesaid the estate of the deceased has sustained damages in the sum of $5,000, for which sum plaintiff prays judgment with interest from the 12th of August, 1889, and for costs."

The contention of the defendant in error is that no lia