
    *Noble & Wife v. The City of Richmond.
    [31 Am. Rep. 726.]
    January Term, 1879,
    Richmond.
    X. Municipal Corporations — Defective Streets — Liability. — A municipal corporation, which, by its charter, has the power to lay out, improve, light, and keep its streets in order, is liable in damages at the suit of an individual who sustains injuries by reason of the neglect of said corporation to keep its streets in a proper and safe condition.
    2. Quasi Municipal Corporation. — This rule applies to Municipal Corporations proper; but quaere if it applies to quasi corporations, such as counties, townships, and New England towns, unless they are so declared to be liable by some statute.
    3. Municipal Corporations — Delegating Grants of Power. — The grant of power, in the charter of a city, to the council, to lay out, improve, light, &c., its streets, is a grant to the corporation, and is of such a character as to prevent its exercise by any other person or body
    4. Same — Pleading.—The action cannot be maintained solely on the defect or want of repairs in the street or sidewalk, but the plaintiff must allege and prove that the corporation had notice of such defects (which notice may be implied), and that he was injured either in person or property in consequence of such defects in such street or sidewalk.
    This was an action of trespass on the case, brought in the circuit court of the city of Richmond, by William M. Noble and Olivia E., his wife, against the City of Richmond for alleged injuries sustained by said Olivia E. by falling in a hole in the sidewalk of one of the streets of the city. The declaration wás as follows:
    In the circuit court of the city of Richmond —Hon. Beverly R. Wellford, judge— April rules, 1'874:
    William M. Noble and Olivia E. Noble, his wife, plaintiffs, complain of the City of Richmond, Virginia,- *defendant, who has been duly summoned, &c., of a plea of trespass on the case,.for that whereas the defendant before and on the 12th day of December, 1873, was a municipal corporation, chartered by the legislature of Virginia, clothed with the powers incident to its charter as % city, and subject to all the duties and liabilities incident to such charter, .and thereby it -became and was, among other duties of said defendant, the duty of the defendant to keep in good repair and fit for the use of the public generally, and the plaintiff in particular, all of its public streets and sidewalks which it allowed to remain open to the use of the public, and to keep sound, safe and serviceable for public use and travel all its pavements, foot-ways and sidewalks, and particularly the sidewalk or pavement on the westermost side of Second (2d) street, between Franklin and Main streets, opposite the house of one Marian Anderson, in the city, of Richmond, Virginia, aforesaid, in which said highway there now is, and for a long time before, and on the day and year aforesaid there was a certain hole opening into a cellar or vault belonging to said Marian Anderson, to-wit: at Richmond, Virginia, of all which the said defendant, long before the day and year aforesaid, had notice. Yet the said defendant, well knowing the premises, although bound as aforesaid to keep said highway in safe condition and repair for the use of the public and the plaintiff, on the day and year aforesaid, disregarding its duty in the premises, did not so keep the same in good repair, but on the contrary wilfully, negligently, wrongfully and unjustly permitted said hole-to be and. continue, and the same was then and there so badly, insufficiently and defectively covered or protected that by means of the premises, and for want of proper'covering or railing to said hole or area, the plaintiff, Olivia _ E. Noble, who was then and _ there *passing in and along said highway, then and there necessarily and unavoidably slipt and fell into said hole, and thereby the right shoulder and the left shoulder of the plaintiff, Olivia, were badly dislocated, and she, the plaintiff, became and was sick, sore, lame, diseased and disordered, and'so remained from thence hitherto. during all which time she thereby suffered and underwent great pain, and was prevented from attending to and transacting her necessary and lawful business, and was also, by means of the premises, forced and obliged to pay, lay out and expend, and did pay, lay out and expend a large sum, to-wit: $100, in and about the endeavoring to get healed and cured of said wounds, sickness and disorder, to-wit: at Richmond, Virginia; and the said plaintiffs aver that said hole or area had been so open upon said highway unprotected, and unfenced, and uncovered for many years prior to the day and year aforesaid, and that the defendant had notice of the same, and that it was a dangerous hole, but the defendant, although well informed thereof, and having had notice thereof for a long time, wilfully and negligently permitted the same to remain unprotected, uncovered and unfenced until the occurrence of the accident aforesaid on the day aforesaid, to-wit: at Richmond, Virginia. Wherefore the plaintiffs say that they are injured and have sustained damage to the amount of $5,000, and therefore they sue.
    Chas. A. Rose.
    H. A. & J. S. Wise, p. q.
    The City of Richmond demurred to the declaration, and also pleaded not guilty. And on the hearing of the cause the court sustained the demurrer, and rendered a judgment for the defendant. And thereupon *the plaintiffs 'applied to this court for a writ of error; which was awarded.
    
      John S. Wise and James Lyons, Jr., for the appellants.
    Keiley, for the appellee.
    
      
      M-tmicipa.l Corporations — Defective Streets — ^lability.—The principal case was cited with approval in Clark v. City of Richmond, 83 Va. 355; Gordon v. City of Richmond, 83 Va. 436; Moore v. City of Richmond, 8S Va. 538; McCoull v. City of Manchester, 85 Va. 579; 1 Min. Inst. (4th Ed.) 629, 630; Smith v. City of Alexandria, 33 Gratt. 208, and note; Biggs v. Huntington, 32 W. Va. 61; Chapman v. Town of Milton, 31 W. Va. 384. The principal case is distinguished in Terry v. City of Richmond, 94 Va. 537.
    
   ANDERSON, J.,

delivered the opinion of the court.

This case is brought up upon a demurrer to plaintiffs’ declaration, and raises the question as to the civil liability of municipal corporations for injuries to private persons caused by defective and unsafe streets and sidewalks.

The City of Richmond — the defendant — is a municipal corporation, chartered by an act of the legislature of Virginia. Among the many important powers vested by the charter in the council is the power over the streets and public alleys of the city — to close or extend, widen or narrow, lay out and graduate, pave and otherwise improvd them; to have them properly lighted and kept in good order. They may build bridges in and culverts under the streets, and may prevent or remove any structure, obstruction, or encroachment over or under or in a street or alley or any sidewalk thereof. And they are invested with power to prevent the cumbering of streets, avenues, walks, public squares, lanes, or bridges in any manner whatever.

The grant of these powers to the city council is a grant to the corporation; (16 New York R., p. 161, opinion of Selden, J., in West v. The Trustees of the Village of Brock-port, in note;) and the grant to the corporation is of a character to exclude its exercise by any other. The city corporation, by its charter, has the exclusive power to keep the streets and sidewalks in repair and *safe condition; and if they neglect to do it there is no other who has the power to do it, and so it will not be done at all. The terms of the grant, therefore, imply a duty on the part of the defendant to keep the streets and sidewalks of the city in good order and safe condition. And so, “where the duty to repair is not especially enjoined, and an action for damages, caused by defective street?, is not expressly given, (it is said, 2 Dillon on Municipal Corporations, § 789, p 917, ch. 23,) still both the duty and the liability, if there be nothing in the charter or legislation of the state to negative the inference, has often, and in our judgment properly, been deducted from special powers conferred upon the corporation to open, grade, improve, and conclusively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal to enable it to discharge this duty.”

The means to perform the duty of maintaining the streets in a safe condition by authority to levy taxes, or impose local assessments, is conferred upon the defendant by its charter. If this view is correct it is undoubtedly a duty devolving upon the corporation of " Richmond City — the defendant — to keep its streets and sidewalks in repair and in safe condition. If it neglects to keep any of them in repair and in safe condition, by reason whereof private persons without fault on their part have sustained injuries, is the city liable in a civil action for damages?

The books distinguish between municipal corporations proper and quasi corporations, such as counties and townships, and New England towns. It is almost universally considered that the latter are not liable to civil action for damages occasioned by defective roads and bridges under their control, unless so declared by statute. There is no common-law obligation upon them, *it is held, to repair highways or bridges within their limits, and they are only obliged to do so by force of the statute. Even when the legislature enjoins on them the duty to make and repair roads, &c., and grants the power to levy taxes therefor, it has generally been regarded as a public and not a corporate duty, and these political subdivisions of the state on whom the duty is imposed, as state agencies, are not liable to a civil action for damages caused by the neglect to perform the duty, unless the action is expressly given by statute. But in a recent case (Bigelow v. Inh. of Randolph, 14 Gray, Mass. 541), Mr. Justice Metcalf says: “This rule of law, however, is of limited application. It is applied, in (he case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it at its request. In the latter cases a town is subject to the same liabilities for the neglect of those special duties to which private corporations would be if the same duties were imposed, or the same authority conferred on them, including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents.” And this comports with the reason which has been assigned for the distinction between these quasi corporations and corporations proper — that is, municipal corporations — why the former are exempt, whilst the latter are not, from liability to damages in civil actions for injuries to private persons caused by defects in the public highways, streets or sidewalks within their respective limits, to-wit: that the duties are imposed on the former by the mandate of the law, without their assent, and the authority ’-conferred on them as agents of the public without special advantage to them, not by their request; whilst upon the latter the power is conferred by their requests, which may be wielded for their advantage, and the duties are voluntarily assumed by them in consideration of special and valuable benefits, which as corporations they derive therefrom, and other privileges and franchises conferred by their charter. As was said in Meares v. Commiss. of Wilmington. 9 Ired. R. 80, “when the sovereign grants po.wer to a private corporation to construct a railroad, the grant is made for the public benefit, and is accepted because of the benefit which the corporation expects to derive by making money. So when the sovereign grants power to a municipal corporation to grade the streets and keep them in repair, the grant is made for the public benefit, and is accepted by the corporation for the benefit which it expects to derive, by making it more convenient for the citizens — the members of the corporation —to pass and repass in the transaction of business, and by the greater inducements it holds out to others to frequent the town and thereby add to its business. The stockholders in the one case and the citizens in the other, derive special benefits which are not shared by the,citizens of the state generally.”

It is a general principle of law, and it is founded in reason, that when one suffers an injury by the neglect of another to perform a duty, in the performance of which he is interested, he has against him a right of action. This doctrine applies not only to individuals, but to private corporations aggregate, and it obliges such corporations to respond in a private action, though the action be not given by statute, for the damages which another has sustained by reason of its neglect or default to perform any corporate duty. Riddle v. Proprietors of Locks and Canals, &c., 7 Mass. R. 169; *Weld v. Proprietors, &c., 6 Greenl. R. 93; Ward v. New York, &c., Turnpike Co., Spencer (N. J.), 323, 325; Parnaby v. Canal Co., 11 Ad. & El. 223, 39 Eng. C. L. R. 54.

The principle which lies at the basis of the decision in Henley v. Mayor, &c., of Lyme Regis, 5 Bing. 91, 3 Barn. & Adolph 77, as stated by Mr. Justice Selden in West v. The Trustees of the Village of Brockport (16 New York R. 163, in note), and of the series of English cases upon the authority of which that case was decided, is, “That whenever an individual, or a corporation for a consideration received from the sovereign power, has become bound by- covenant or agreement, either express or implied, to do certain things, such corporation or individual is liable, in case of neglect to perform such covenant, not only to a prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance.” In Sawyer v. Corse, 17 Gratt. 230, Joynes, J., speaking for the whole court, announces the same principle; i. e., “that where the authority, though for the accomplishment of objects of a public nature, and for the benefit of the public, is one from the exercise of which the corporation derives a profit; or where the duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemption does not apply”; and the reason he assigns why the corporation is-not exempt from liability in a civil action, though differently expressed, is substantially the same — that “the corporation is not acting merely as an agent of the public, and with a view solely to the public benefit, but that in the former * (where it derives a profit) it is pursuing its own interest and profit, and in the latter is executing a contract, for which it has received a consideration. This court also, in City of Richmond v. Long’s administrators, recognized the doctrine that where a municipal corporation acts in the 'exercise of powers or the discharge of duties in nowise discretionary or governmental, but purely ministerial in their character, it incurs, like a private person, the common-law liability for the acts of its servants; and it does not matter, as was once intimated, if there be the absence of special rewards or advantages, it being considered and allowed that such gratuitous function is to be regarded as a burthen accepted under the charter in consideration of its privileges.”

The case of Henley v. The Mayor and Burgesses of Lyme Regis, supra, went from the Common Pleas, through the King’s Bench, to the House of Lords. And the counsel for the plaintiff in the House of Lords contended that every breach of a public duty, or neglect of what the party is bound to> perform, working wrong or loss to another, is injurious and actionable, a principle hereinbefore alluded to, and cited Sutton v. Johnstone, 1 T. R. 784, and Russell v. The Men of Devon, 2 T. R. 667. But it appears that the decision was not upon that ground, from the opinion of Park, J., the only opinion given in the House of Lords, who, after quoting the charter, said: “Now, these words are undoubtedly an expression of the King’s will, that the corporation shall repair, but they are not the less a consideration on that account; on the contrary, they show the consideration for the grant, the motives inducing the King to make the grant, and consequently the terms and conditions on which the grant was to be accepted.”

Mr. Justice Selden, in West v. Brockport, supra, very *truly remarks “that such charters are never imposed upon municipal bodies except at their urgent request. While they may be governmental measures in theory, they are in fact regarded as privileges of great value, and the franchises they confer are usually sought for with much earnestness before granted. The surrender by the government to the municipality of a portion of its sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on part of the corporation to perform with fidelity the duties which the charter imposes.”

Mr. Justice Cooley in a dissenting opinion in Detroit v. Blackely, says: “The New York courts have invariably held that when the people of the municipality accepted the charter which they thus solicited a contract was implied on their part to perform the corporate duties.- They have always denied that in this respect there was any difference between a municipal corporation and a private corporation or private individual who had received from the sovereignty a valuable grant charged with conditions”; and he cites numerous decisions of New York courts, which fully sustain the assertion. He cites, also, the decisions of other states • — of North Carolina, Pennsylvania, indiana, Alabama, Connecticut, Illinois, Maryland, and Wisconsin, and the two decisions of this court before referred to. He also refers to decisions of the supreme court of the United States. These cases and others which might be cited, though all of them may not go to the full extent of his proposition, T think fully maintain the doctrine that municipal corporations are liable in civil action for neglect of duties, in cases like the present, to a private citizen who has been injured by such neglect. The doctrine of Henley v. Mayor, &c., of Lyme Regis, as applied in West v. *Brockport, Mr. Justice Cooley says, is denied in no state except in New Jersey, and in that state the authorities to which he referred seem to have been passed over in silence, and perhaps were not observed.

In the recent case of Barnes v. District of Columbia, 1 Otto U. S. R. 540, the supreme court of the United States maintained the liability of municipal corporations to a civil action for injuries to a private individual caused by their neglect to keep the streets or sidewalks in repair. Mr. Justice Hunt, in delivering the opinion, in which the majority of the court concurred, says that the decisions holding the doctrine “that a city is responsible for its mere negligence are so numerous and so well considered that the law must be deemed to be settled in accordance with them, and cites many of them, including the two Virginia cases cited supra. Detroit v. Blackely, 21 Mich. R. 84, is referred to and disapproved of, whilst the conclusions of Mr. Justice Cooley, in his dissenting opinion are maintained.

But no one can maintain an action against the city grounded solely on the defect or want of repair of the street or sidewalk, but he must allege and prove that the corporation had notice of the defect or want of repair— which notice may be implied — and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the street or sidewalk. Weight-man v. The Corporation of Washington, 1 Black’s R. 39. In this case the defect in the sidewalk, and the injury caused thereby to the plaintiff, and that the corporation had notice of it, are all averred in the. declaration, and must be taken to be true on the demurrer.

Dor the reasons stated, and upon the authorities cited, we are of opinion that the plaintiffs, upon the *case made by their declaration, were entitled to their action against the defendant for damages, and that the court erred in giving judgment for the defendant. We are therefore of opinion to reverse the judgment with costs, and to remand the cause to be proceeded with in conformity with the principles herein declared.

MONCURE. P.,

dissented.

The judgment was as follows:

The court is of opinion, for reasons stated in writing, that municipal corporations are liable to civil action at the suit of the party injured, because of a default in keeping the streets and sidewalks in repair and safe condition; and that the matters, substantially set out in the plaintiffs’ declaration, are sufficient in law to entitle them to their action against the defendant for damages, and that it was error in the court below to sustain the defendant’s demurrer to the plaintiffs’ declaration, and to give judgment thereon for the defendant. It is therefore considered that the judgment of the circuit court of Richmond be reversed and annulled, and that the plaintiffs in error recover their costs expended in the prosecution of their writ of error here. And the court proceeding to render such judgment as ought to have been rendered by said circuit court, it is considered that the demurrer to the plaintiffs’ declaration be overruled; and the cause is remanded to the circuit court of Richmond for further proceedings therein in conformity with this order.

Judgment reversed.  