
    John Josupeet, Plaintiff, v. The City of Niagara Falls, Defendant.
    (Supreme Court, Niagara Special Term,
    February, 1911.)
    Municipal corporations: Powers and exercise of governmental functions— In general — What are governmental functions: Liabilities of municipalities not based upon contract — What are wrongful act's or omissions for which municipality is liable—Proximate cause; Liability for personal injuries.
    The construction and' maintenance of public highways is the work of the State acting in a governmental capacity and exercising functions devolving upon it as a sovereign; but, when for the accomplishment of such work the State commits to a municipality the ordinary and usual care of streets and the municipality accepts the powers and responsibility, the municipality becomes liable for the proper performance of the functions committed to it by the officials and others whom it employs for- the purpose, and liable to those who are injured by the negligent or improper performance of such functions, whether those sustaining injury are the traveling public or employees of the municipality engaged in the work.
    In the performance of such functions, the municipality is held to the same care for the safety of its employees as an individual; and the provisions of the Employer’s Liability Act apply to it as to a private corporation or individual employer of labor.
    Where, in removing a pile of stone and earth about one hundred feet long arid twelve or fifteen feet high, covered with frozen crust which is blasted off from time to time in the course of the removal of the unfrozen mass below, the frozen crust which overhangs a certain place from which the softer material below has been taken was cracked but not thrown down by a blast, and a workman, by direction of the foreman, continued the excavation of the unfrozen material at this point, when the projecting frozen crust above broke off, rolled down the bank and injured him, in an action by the workman against the municipality the question of its negligence is properly submitted to the jury.
    Motion by the defendant for a new trial after a verdict in favor of plaintiff.
    Edward E. Franchot and Franklin J. Mackenna, for motion.
    Alfred W. Gray, opposed.
   Wheeler, J.

The plaintiff recovered a verdict -against the city of Niagara Falls, for serious personal injuries received under the following circumstances: In January, 1908, the city was engaged in removing a pile of stone and earth from East Falls street in that city. -Something more than a year prior to -the accident, the city had constructed a large trunk sewer in this street, and a large quantity of broken stone and earth had been taken from the trench dug for that purpose. The pile was probably in the neighborhood of one hundred feet in length, and from twelve to fifteen feet in height, with sloping sides. Some months before the accident, the common council of the city had made an appropriation of. $2,000 to" defray the cost of removing this pile of stone from the street. .Shortly prior to the commencement of the work, the board of public works instructed the superintendent of streets to proceed with the work as soon as possible. The street superintendent hired about seventy men to work on the job. Most of these were men temporarily out of work and in need of assistance to tide them over a depression in business in the city at that time. The plaintiff applied to the superintendent of streets for work, and was directed to report to one 'Ooykendall, the foreman in charge of the men at work on the pile. Within a couple of hours after he had reported for duty, the plaintiff was injured.

The evidence showed that the stone pile had been frozen, and that a solid -crust of a thickness of from two to two and a half feet had formed over the pile. Teams with wagons were employed to haul the stone away, and it was taken and used for filling in other streets of the city in the neighborhood.

The workmen began shoveling the stones away at the foot of the pile, and gradually worked toward its center. In so doing, they took out the unfrozen mass below, but the frozen crust above would overhang. It had been the custom each noon and each night, after the workmen had left the pile, to blast off this frozen overhanging crust by the use of dynamite. The workmen would, the next day, shovel again, and the blasting would be repeated. Dynamite had been used in this way the night before, but the evidence showed that its discharge .had failed to break off quite a considerable piece of the frozen overhang in about the middle of the pile, and that this projected about two or three feet. A witness, who was on the top of the pile the morning of the accident, testified he observed that the discharge of the dynamite the night before had started the mass sufficiently to open cracks in it, but not sufficiently to entirely break it off and cause it to fall. This dangerous condition of the overhang at this point, so far at least as the cracks were concerned, could only be seen by going on top of the pile, and was not obvious to a person working at the base of the slope. During most of the morning this dangerous point in the pile had been avoided, and the men had been put at work at other points along the pile; but, about half past eleven, the evidence shows, the foreman ordered the plaintiff and some men in the gang with him to begin shoveling into a wagon immediately under this dangerous overhang. The plaintiff apprehended no danger; and, while so engaged, and within a very short time after he had begun working at this point, the overhang broke off, rolled down the bank, struck the plaintiff and caused the injuries for which the recovery was had. It appears no warning was given the plaintiff of danger, and we cannot discover that he was chargeable with any contributory negligence. The question was left with the jury to say, under instructions from the court, whether as matter of fact the city was guilty of negligence, and whether the plaintiff was free from contributory negligence.

We think the evidence in the case clearly made out a good cause of action against the defendant. Simone v. Kirk, 173 N. Y. 7; Reilly v. Troy Brick Co., 184 id. 399.

The counsel for the defendant, in an able argument reviewing many decisions, however, contends that the city of Kiagara Falls is not liable to the plaintiff for the negligence, if any, of its street superintendent, or foreman in charge of the men engaged in the work of removing the stone pile in question. It is argued that such officials are not, in law, to be deemed agents of the city, but representatives of the State, acting in a governmental capacity and exercising certain functions devolving on the sovereign, as distinguished from the municipality.

The contention of the defendant is entitled to consideration. The construction and maintenance of public highways is, primarily, one of the great functions of the State; nevertheless it is now perfectly well established, by numerous decisions of the highest courts of the State, that, where, by legislative enactment, the ordinary and usual care of streets, both as to repair and cleanliness, is committed to a municipality and the power and responsibility has been accepted, the city becomes liable for a proper discharge of these governmental functions. The liability is based upon an express or implied acceptance of the power, and an agreement to perform the functions so committed to it; and it is held to be a duty with which the city is charged for its own corporate benefit to be performed by its own agents as its own corporate act. Conrad v. Trustees of Ithaca, 16 N. Y. 158; Weet v. Village of Brockport, id. 161; Missano v. City of New York, 160 id. 123; MacMullen v. City of Middletown, 187 id. 45; Ryan v. City of New York, 177 id. 271—288; Ehrgott v. City of New York, 96 id. 265; Maxmilian v. Mayor, 62 id. 160; Quill v. City of New York, 36 App. Div. 476.

Undoubtedly it is within the province of the Legislature to limit or restrict the liability so imposed on the municipality, but “ in the absence of any restrictions ” the duty imposed in charters of keeping streets in proper condition makes the municipality responsible for the acts of its officials or corporate agents. MacMullen v. City of Middletown, 187 N. Y. 45.

We are unable to discover any such restrictions in the charter of the city of Niagara Falls. By the city charter (Laws of 1904, chap. .300, § 16), the Legislature provided that: “ There shall be appointed by the mayor under this act, at the times and for the terms of office herein stated, the following officers, who shall receive for their services, as such, the compensation and salaries herein stated, and no other, namely: * * *

• “ 4. A superintendent of streets for a term of one year; salary ten hundred dollars per year. * * *
“10. Four members of the board of public works, two of whom are not adherents of same political party, to be appointed each year for a term of two years; they shall receive no salary.”

By section 211 of' the same act, the Legislature provided: “ The board of public works, subject to the provisions of this act, the other laws of the state and the ordinances of the common, council, shall have cognizance, direction and control of the construction, alteration, repair, care, * * * of the streets, ways and sidewalks of said city, etc. •x- * * J)

The Legislature also provided, by sections 230 and 231: “ The superintendent of streets, under the direction and control of the board of public works, shall take immediate charge of all streets of the city, and, except as otherwise provided in this act, the other laws of the state or by ordinances of the common council, the superintendent of streets has over the streets within the city all the jurisdiction, and is charged with all the duties of commissioner of highways within the towns of the state.

“ Under the direction of the board of public work® the superintendent shall hire all necessary laborers, teams, and provide the necessary implements and utensils, and direct the execution of the work.”

Section 31 is as follows: “Any appointive city officer of said city may be removed from office by the officer who would have power to fill a vacancy, if a vacancy were then existing in said office, upon any one or more of the following grounds, namely, incompetency, neglect of duty, misconduct or inability to perform the duties of his office. But such removal shall be founded upon specific charges in writing, whereof a copy shall be furnished to such officer, and before such removal he shall have an opportunity to appear in person or by counsel, and be heard in his defense at a public hearing.”

By the latter part of section 523 of the charter, it is declared: “ ¡Nothing contained in this section shall -be held * * * to modify any existing law relative to the question of contributory negligence, nor to impose upon the city any greater -duty of obligation than that it shall keep its streets and public places in a reasonably safe condition for public use and travel.”

It is urged, however, that the liability imposed by charters of the character in question, as declared by the decisions of the courts, is a liability ■ in favor of the traveling public, and not a liability to an employee engaged in the work of repairing streets or keeping them in proper condition; and it is urged by defendant’s counsel that the liability of the municipality should not be extended so as to embrace cases of the character of the plaintiff’s in this action.

We are unable to discover a good or sufficient reason for making any distinction between the two classes of cases. The courts have not confined the right of recovery to travelers injured by defective highways, or limited the right of recovery simply to the failure to keep highways in proper condition.

In the case of Missano v. City of New York, 160 N. Y. 123, a child was run over and killed by a horse attached to an ash cart of the street department of the city of Few York, owing to the negligence of the driver, and a recovery was sustained. The court broadly asserted that, where a municipality, “ for a consideration received from the sovereign power, has be-, come bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to •a public prosecution by indictment, hut to a private action at the suit of any person injured hy neglect

In the case of Quill v. City of New York, 36 App. Div. 476, the plaintiff claimed to have been injured by an ash or garbage cart belonging to the street cleaning department of the city; and it was argued that the municipality was not liable for the tort. Judge Oullen, now chief judge of the Court of Appeals, wrote the opinion of the court arid, after discussing the cases, held that the duties .being performed by the department were strictly municipal; and a recovery against the city was sustained.

It is true that in neither of these two cases was the plaintiff an employee, but the right of recovery was based upon the theory that, the proper maintenance and care of the public streets of a city being a municipal and not a governmental function, the officials and employees employed in the performance of those functions are to be deemed the agents of the city, and the city liable for their acts. It would be, to our mind, idle to contend that as to one class of persons such officials and employees are to be deemed agents of the municipality, and as to another class agents of the State.

If it be the individual duty of the municipality to keep the streets in repair and in condition for travel, it must employ men for that purpose, and it must exercise toward them the same care for their safety of life and limb as individual employers are bound to exercise toward their employees. We can see no reason why a municipality should not be held to the same care for the safety of its employees as an individual, nor why all the provisions of the Employers’ Liability Act should not apply to cities equally as to private corporations or individual employers of labor. The act makes no exception in favor of municipalities, and considerations of public policy require none should be made by judicial construction or decision.

The cases cited and relied on by defendant’s counsel to support his contention are not, in our opinion, analogous to the case in hand; and the considerations of public policy which controlled in those cases we think have no application to a municipality charged with the proper discharge of a duty in the care of streets, which it has assumed and undertaken to perform.

In this case, therefore, we are constrained to hold that the negligence of the foreman in charge of the workmen at the pile being hauled away is not, in law, the negligence of a coemployee, but chargeable to the city of ¡Niagara Falls as principal.

The motion for a new trial is denied.

Motion denied.  