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by coming in contact with a live wire, belonging to appellee, which had fallen from its electric light pole in the adjoining street. A demurrer was sustained to the complaint, and, from the judgment which followed, appellant appeals.
It is contended by counsel for appellee that, as it does not appear that the city made any use of said system other than for the purpose of lighting its streets, it was acting in a governmental capacity, and is therefore not to be held liable for the negligence of its employés and servants in the management of the property. Municipal corporations proper, as cities and towns, do not enjoy as extended immunity from liability ex delicto as do public quasi corporations, which are mere subdivisions of the state, organized for the purpose of administering the local affairs of government. As it is possible, however, to devolve upon cities and towns duties which they administer solely for the public good, it follows that, with respect to such duties, they are regarded as acting on behalf of the state, and not in their private or corporate capacity. Speaking in general terms, it may be said that the duties which municipalities perform with respect to the public health, charities, and schools, in the protection of property against fire and in the maintenance of the peace, are ordinarily regarded as performed as representatives of the general public, and in such cases cities and towns enjoy the same immunity from action ex delicto as does the state. We may at once put aside, as not involved in this case, all question concerning the nonliability of municipal corporations for their acts or omissions in respect to legislative, discretionary, and quasi judicial powers. The omission in question involves the failure to perform a ministerial act, and, if it was a corporate duty, the municipality was guilty of a tort. It was said by Campbell, J., in Sheldon v. Kalamazoo, 24 Mich. 383, 385: "The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the prejudice of private parties. In this respect, public corporations are as distinctly legal persons as private corporations. When the act done is in law a corporate act, there is no ground upon reason or authority for holding that if there is any legal liability at all arising out of it, the corporation may not be answerable. There is no conflict whatever in the authorities on this head." Judge Dillon, who has been at considerable pains to cast into doctrine the decisions of the courts relative to municipal responsibility for tort, says: "As respects municipal corporations proper, whether specially chartered or voluntarily organized under general acts of the character before alluded to, it is, we think, universally considered, even in the absence of a statute giving the ac
tion, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties, and it is the almost, but not quite, uniform doctrine of the courts that they are also liable where the wrong resulting in an injury to others consists in a mere neglect or omission to perform an absolute and perfect (as distinguished from a legislative, discretionary, quasi judicial, or imperfect) corporate duty, owing by the corporation to the plaintiff, or in the performance of which he is specially interested." 2 Mun. Corps., § 966. As far back as Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361, this court declared that "it may also be considered as settled that municipal corporations are responsible, to the same extent, and in the same manner, as natural persons, for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for the benefit of the cities and towns under their government." In four instances this declaration of the law has been approved by this court. City of Logansport v. Wright, 25 Ind. 512, 515; Stackhouse v. City of Lafayette, 26 Ind. 17, 22, 89 Am. Dec. 450; Roll v. City of Indianapolis, 52 Ind. 547, 549; City of Greencastle v. Martin, 74 Ind. 449, 452, 39 Am. Rep. 93. As was tersely stated in Jones v. City of New Haven, 34 Conn. 1: "Where judicial duty ends and ministerial duty begins, there immunity ceases and liability attaches." Counsel for appellee concede that if the wire had fallen in a public street, and the city knew, or ought to have known, of its defective condition, appellee would have been guilty of negligence in failing to keep the street safe, but it is to be remembered that the duty of a city or town in respect to the public ways therein grows out of the exclusive power which the municipality possesses over such ways coupled with the power of taxation for general purposes. Grove v. City of Fort Wayne, 45 Ind. 429, 15 Am. Rep. 262; Yeager v. Tippecanoe Township, 81 Ind. 46; Elliott, Roads and Streets, § 611. If the city would be liable for the omission of a duty in the case mentioned, a fortiori, ought it to be liable in a case involving the elements of a trespass?
There is really but one question in this case, and that is, was the omission a corporate dereliction, or was appellee's act in providing a public lighting system a governmental undertaking? In the determination of this question it is proper to consider the manner in which the power was conferred, the obligations which naturally flow from proprietorship, and the purpose for which the power was granted and exercised. The city was under no obligation to light its streets. It enjoyed that authority, but the
use one's property as not to injure others', forbids other application or use of the rights and powers conferred." It is perhaps as much upon the ground of proprietorship as any other that it was held in Twist v. Rochester (Sup.) 55 N. Y. Supp. 850, affirmed in 165 N. Y. 619, 59 N. E. 1131, that a city was liable for permitting a patrol wire, heavily charged with electricity, to fall and remain in a public street. See, also, Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Thayer v. Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157. We may, in this connection, mention that, in City of Greencastle v. Martin, 74 Ind. 445, 39 Am. Rep. 93, it was held that the city was properly charged with negligence in the management of its pound, although the ordinance providing for the impounding of animals was an exercise of the police powers. It was decided in City of Lafayette v. Allen, 81 Ind. 166, that the complaint therein, which was by a person who had been employed as engineer of the waterworks of the municipality, for injuries received by the explosion of the boiler used in pumping water into the city water pipes, stated a cause of action, although it is to be noted that there was no allegation in the complaint that the city derived a profit from the sale of water.
exercise of the power was wholly a matter of its own volition. Section 4301, Burns' Ann. St. 1901; City of Indianapolis v. Scott, 72 Ind. 196; Tiedeman, Mun. Corps., § 344a, and cases cited. As neither the letter nor the implications of the statute has made the lighting of streets a governmental duty, and as the city derives a benefit in its corporate capacity, as well as a local benefit, from the exercise of the power, the fact that it was voluntarily exercised is an important circumstance. The proposition finds illustration in a number of cases where the benefits might be said to be in a degree public, but where there was nevertheless room for the supposition that the local advantage to the corporation or its inhabitants was a moving consideration in the voluntary assumption of the power. Thus, in Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, 187, 5 Am. Dec. 35, Parsons, C. J., in pronouncing the opinion of the court says that it is one of the maxims of the common law "that a man specially injured by the breach of duty in another shall have his remedy by action. If the breach of duty be by an individual, there is no question; and why should a corporation, receiving its corporate powers and obligated by its corporate duties with its own consent, be an exception where it has, or must be supposed to Coming to the purpose for which the power have, an equivalent for its consent?" It to erect an electric light plant was granted, was held, in Oliver v. City of Worcester, it must be admitted that public lighting 102 Mass. 489, 499, 3 Am. Rep. 485, that serves a governmental purpose, at least in an the city was liable for a defect in a path in incidental way, in that it is a check upon the public common. Gray, J., in that case crime and immorality, but the element of said that cities may be liable "for acts done local convenience to the inhabitants and the in what may be called their private char- extent to which such lights protect the municacter, in the management of property volun- ipal treasury against damage suits, because tarily held by them for their own immediate of streets which have become temporarily profit or advantage, although inuring, of or permanently unsafe, affords a very clear course, ultimately to the benefit of the pub- basis for the assertion that such lights are lic." In Jones v. City of New Haven, 34 a municipal utility. The fact that a city or Conn. 1, the city was held liable for the town, pursuant to statute, voluntarily confailure to remove a decayed limb of a tree structs and maintains a work from which it in the public square, whereby a person was derives a revenue has frequently been reinjured, the corporation having properly ferred to as one of the markings of a munitaken upon itself the duty of caring for the cipal undertaking. No case, however, has trees. We shall not dwell at length upon come to our notice in which this element the obligations of proprietorship. Where a has been held essential to liability, but there city has seen fit to acquire title to prop- are many authorities that either directly or erty in the management of which it is with- in effect uphold the opposite view. Twist out let or restriction it would seem peculiar- v. City of Rochester, supra; Missano v. ly just, at least where the property in part Mayor, 160 N. Y. 123, 54 N. E. 744; Jones v. serves some municipal purpose, that there City of New Haven, 34 Conn. 1; Barney should be devolved upon the municipality Dumping Boat Co. v. Mayor (C. C.) 40 Fed. that fundamental obligation of ownership 50; Eastman v. Meredith, supra; Thayer v. which finds expression in the maxim, "sic Boston, supra; Oliver v. City of Worcester, utere tuo ut alienum non lædas." As said 102 Mass. 489, 499, 3 Am. Rep. 485; Dickby Mr. Justice Field, in Baltimore, etc., R. inson v. City of Boston, 188 Mass. 595, 75 Co. v. Fifth Baptist Church, 108 U. S. 331, N. E. 68, 1 L. R. A. (N. S.) 664; Wagner v. 2 Sup. Ct. 728, 27 L. Ed. 739: "grants of City of Portland, 40 Or. 389, 60 Pac. 985, privileges to corporate bodies confer no 67 Pac. 300; Webb's Pollock on Torts, 69; license to use them in disregard of the Jones, Neg. Mun. Corps. § 150; Williams, private rights of other persons. The great Neg. Mun. Corps. § 31. Neg. Mun. Corps. § 31. At least as to propprinciples of the common law, which is equal-erty voluntarily held, if the exercise of the
ly the teaching of Christian morality, so to
power confers a benefit upon the people of
the community in their local capacity, or if it is a means to the attainment of some municipal end, we are of opinion that the corporation is held to the exercise of due care concerning such property. The blending of the powers of local sovereignty and corporate capacity in one does not destroy the clear and well-settled distinction which the cases maintain, nor does the confusion render the process of separation impossible. Western Savings Fund Soc. v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Bailey v. Mayor, 3 Hill (N. Y.) 531, 38 Am. Dec. 669. In the case last cited, which is a leading one upon the general subject under discussion, the question was involved as to the liability of the city of New York for the negligent construction of a dam by its water commissioners. A point of difficulty was presented, in that
such commissioners were designated by the the
Legislature, but the city had accepted the benefit of the act. In response to the argument that the undertaking was governmental in its character, Nelson, C. J., said: "The argument of the defendant's counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or public body-such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate or interest in the grant. As the powers in question have been conferred upon one of these public corporations, thus blending in a measure those conferred for private advantage and emolument with those already possessed for public purposes. there is some difficulty, I admit, in separating them in the mind, and properly distinguishing the one class from the other, so as to distribute the responsibility attaching to the exercise of each. But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the Legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage or emolument, though the public may derive a common benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company." In Barney Dumping Boat Co. v. Mayor, supra, the question arose as to the liability of the city of New York for the negligence of persons in charge of a tug used by the city in connection with the cleaning of its streets. Judge Wallace, in referring to the duties of the street commissioner, said: "His duties, unlike those of the officers of the departments of health, charities, fire, and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining
its streets in fit and suitable condition for the use of those who resort to them." Following the last-cited case it was held, in Missano v. Mayor, 160 N. Y. 123, 54 N. E. 744, that the city was liable for the negligence of the driver of an ash car who was employed in the street cleaning department. A case which is precisely like this in principle is Dickinson v. City of Boston, 188 Mass. 595, 75 N. E. 68, 1 L. R. A. (N. S.) 664. In that case the city had by ordinance established what it termed a lamp department, that included the lamps and other property used by the municipality in its system of street lighting, and the management of the department had been intrusted to an officer. This was done under a statute which authorized, but did not require, the city to maintain lamps to light its streets. An action was brought to recover for injuries received by the plaintiff's intestate, while on her own premises, owing to the fall of a defective lamp-post which stood in the public way. Answering the objection that the of ficer in charge of the department was a public officer for whose negligence 'the city was not responsible, the court said: "In suits for damages caused by defects in streets, which at night may become dangerous to travelers because they are dark and unlighted it uniformly has been held that, as a city or town is under no statutory requirement to light them, an omission to do so does not constitute negligence. Sparhawk v. Salem, 1 Allen (Mass.) 30, 32, 79 Am. Dec. 700; Randall v. Eastern Railroad Co., 106 Mass. 276, 8 Am. Rep. 327; Lyon v. Cambridge, 136 Mass. 419; Spillane v. Fitchburg, 177 Mass. 87-88, 58 N. E. 176, 83 Am. St. Rep. 262. But if, under no obligation imposed by statute, the defendant undertook this service for the general convenience of its citizens, and travelers within its borders, it also by so doing derived an incidental benefit by the protection thus afforded of decreasing the probability of suits against it for defective public ways, under Rev. Laws, c. 51, §§ 1, 18. An unlighted public way, indeed, may be dangerous when used at night, though not thereby rendered defective. If, however, it is out of repair, and this condition has been undiscovered or, if discovered, not remedied, the probability that travelers using it would be less likely to be injured when lighted than if unlighted is apparent and appreciable. It was unnecessary for the plaintiff to show that any direct commercial profit had been derived. The indirect benefit thus conferred supplied a sufficient motive for the defendant's action. Having voluntarily undertaken the enterprise for its private benefit, and not acting in the performance of any public duty, it is liable for negligence in the management of its corporate property, when used for such purpose. If the defendant lighted its streets as a matter of convenience and safety for those having occasion to use them at night, without being required by law to
Ind.) TERRE HAUTE & L. RY. CO. v. INDIANAPOLIS & N. W. TRACTION CO. 661
undertake the performance of such a duty, the superintendent of lamps for this purpose became its servant, for whose negligent conduct in their maintenance it was responsible."
We are satisfied that we are within the authorities in holding, as we do, that a city or town is answerable ex delicto for any direct invasion of the rights of third persons in the management of its public lighting system. While the doctrine of immunity of municipal corporations in matters purely governmental is too well established upon the authorities to be shaken, yet we are of opinion that public policy requires that the doctrine should be kept strictly within limits, to the end that, so far as possible, corporate liability may prompt those charged with responsibility in the government of cities and towns to be alert to prevent wrongs to third persons in the maintenance of municipal property. The point is made, however, that although it appears that the fall of the wire was the proximate cause of the death of appellant's intestate, and that said wire had become weak and rotten, in which respect appellee is charged with negligence, yet it is not alleged that the wire fell by reason of such defective condition. Although it is clear from a reading of the complaint that this was an assumed fact, yet the omission of the allegation renders the complaint insufficient, and an affirmance must follow.
In passing, as we have, upon the substantial question in this case, whether appellee enjoyed an immunity from liability in the operation of its electric lighting system, we have decided the sole question argued by appellant's counsel, as well as the first and principal question discussed by counsel for appellee. We have not failed to consider whether, since the judgment must be affirmed, we ought not to pass over what appears to be the real controversy, that of municipal liability, ex delicto in such cases, and base our decision on the clear but narrow ground of a failure to show that the negligence and the result stood in the relation of cause and effect. After much consideration, however, we have arrived at the conclusion that we may with propriety, and that we ought in justice, to decide the real question in the case. In no instance is this court disposed to decide moot questions, or controversies relative to rights in actions which may subsequently be brought, but in this case, finding that the main question is the threshold one, that it is the only one which admits of serious disagreement, and that the complaint is so framed as to show that it was the purpose to charge that the wire fell by reason of the defect, so that it is clear that the missing averment will be supplied-we conceive that our duty is not done in disposing of the case solely on said point and compelling appellant to await the time necessary to dispose of a second appeal, when to decide the real question now, in its order, in the
light of full discussion, would be at once to correct the court below in what was evidently its misconception of the law of the case, to the end that in this controversy justice may be administered, to borrow from the sounding phrases of the Constitution, completely and without denial, speedily and without delay. The general authority to review and revise necessarily includes the right to enforce the law and to administer justice, and the court, upon an investigation of the record, may so frame its judgment as to prevent the defeat of justice by technical and arbitrary rules. It is a rule, which is also applicable to appellate tribunals, that, if a court acquires jurisdiction for one purpose, it will retain it for all, and "our Code means that this court shall decide upon the substantial merits of a controversy where it can properly be done." Feder v. Field, 117 Ind. 386, 20 N. E. 129; Elliott's App. Proc. $ 18. Many cases are to be found in the books in which courts of appellate jurisdiction, in affirming judgments, have, in order to protect the evident equities of one of the parties, added some restrictive provision, or added to the judgment of affirmance an order remanding the cause to the court below, either for the purpose of amending the declaration or the plea, or for some other action to be taken in the trial court. Fidelity, etc., Ins. Co. v. McClain, 178 U. S. 113, 20 Sup. Ct. 774, 44 L. Ed. 998; Matter of Ingraham, 64 N. Y. 310; Piper v. Hoard, 107 N. Y. 73, 13 N. E. 632, 1 Am. St. Rep. 785; Johnson v. Elkins, 23 App. D. C. 486; Witty v. Hightower, 12 Smedes & M. (Miss.) 478; Manns v. Flinn's Administrator, 10 Leigh (Va.) 93; Campbell v. Hughes, 12 W. Va. 183; Gill v. Rice, 13 Wis. 613; Van Orman v. Spofford, etc., 20 Iowa, 215; McDonald v. Cruzen, 2 Or. 259; Powell v. Dayton R. Co., 14 Or. 22, 12 Pac. 83. And, see, Koch v. Purcell, 45 N. Y. Super. 162. As said in Powell v. Dayton R. Co., supra: "This discretion, of course, is a judicial discretion,-not arbitrary, and is always to be exercised in furtherance of justice."
There is no occasion in this case for an order in the nature of a procedento, as the claim is not barred by the statute of limitations, but, within the principle of the procedure just indicated, we regard ourselves as warranted in disposing of the essential question concerning which the parties have challenged the consideration and judgment of the court.
(167 Ind. 193)
TERRE HAUTE & L. RY. CO. v. INDIANAPOLIS & N. W. TRACTION CO. (No. 20,880.)
(Supreme Court of Indiana. Oct. 11, 1906.) APPEAL-PROCEEDINGS ESTABLISHING RAILROAD CROSSING-INTERLOCUTORY ORDERS.
Under Acts 1903, p. 125, c. 59 (Burns' Ann. St. Supp. 1905, § 5464a) supplementary
to Acts 1901, p. 461, c. 207 (Burns' Ann. St. 1901, § 5468a et seq.), relating to interurban railways crossing steam railroads at grade, and permitting an appeal from a decision adverse to the objections of the company whose way is crossed, to the point of crossing, under the restrictions provided for appeals in civil cases, an appeal from an order fixing the point of crossing is an appeal from an interlocutory order within Burns' Rev. St. 1901, § 659, and must be dismissed where appellant has failed to comply with the procedure required in such an appeal.
Appeal from Circuit Court, Montgomery County; Jere West, Judge.
Condemnation proceedings by the Indianapolis & Northwestern Traction Company against the Terre Haute & Logansport Railway Company. From an order fixing the point of crossing, the defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Dismissed. Jno. G. Williams and Thomas & Foley, for appellant. Pierre Gray, for appellee.
GILLETT, J. Appellee, an interurban railroad company, instituted this proceeding against appellant, a steam railroad company, to obtain by condemnation the authority to cross at grade the right of way and tracks of the latter, at a point in Montgomery county. Appellant appeared to the proceeding, and filed objections to the proposed point of crossing. There was a hearing on said objections before the Montgomery circuit court, which resulted in an order, entered on the 25th day of June, 1904, fixing the point of crossing at the place proposed in appellee's instrument of appropriation. Appellant filed a motion for a new trial, which was overruled, and an exception was reserved. Such proceedings were afterwards had that appraisers were appointed, who returned an award of damages in favor of appellant, and, within the time allowed by law, the latter filed exceptions to the award. The record does not show whether there has been a final judgment on such exceptions. It appears that, after the overruling of its motion for a new trial, appellant prayed an appeal to the Appellate Court, which was in terms granted, but no bond was given, and the transcript was not filed and errors assigned in the Appellate Court until the 21st day of June, 1905.
It is insisted by counsel for appellee that an appeal from an order fixing the point of crossing is an appeal from an interlocutory order, and that, as an appeal was not perfected by appellant as required by the statute governing appeals from such orders, a dismissal should follow. The condemnation proceeding in question was had under section 1 of the act of March 3, 1903 (Acts 1903, p. 125, c. 59; section 5464a, Burns' Ann. St. Supp. 1905). This act, as directly appears from its provisions, is supplementary to the act of March 11, 1901 (Acts 1901, p. 461, c. 207; section 5468a et seq., Burns' Ann. St. 1901). The evident design of section 1
of the act of 1903 was to make more particular provision concerning interurban, suburban, and street railroads seeking to cross steam railroads at grade than had existed under section 5 of the act of 1901, which related to the subject of condemnation by interurban and other railroads of like character of lands and rights and interests therein as against proprietors generally. In the main, the framework of the procedure as it now exists is found in the section last mentioned, and there is no doubt that said sections are to be considered as if they were one enactment. The provision concerning the right of appeal from the award is given by the act of 1901 in substantially the same language as is found in the steam railroad condemnation statute (section 5160, Burns' Ann. St. 1901), and this, under well-settled rules of construction, gives the right to set up in the exceptions matters of both law and fact going to the regularity of the appropriation; the effect of the appeal being to lodge the proceeding in the trial court, where it is governed, at least for the most part, by the ordinary rules of procedure in civil actions. McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413; Swinney v. Fort Wayne, etc., R. Co., 59 Ind. 205; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440; Midland R. Co. v. Smith, 125 Ind. 509, 25 N. E. 153. Section 1 of the act of 1903 gives to the company whose right of way is sought to be crossed the right to file objections to the point of crossing, within five days after the delivery of the instrument of appropriation, and to have a hearing thereon, and from a decision of the court or judge adverse to its objections it may appeal "in the same manner and under the same conditions and restrictions as provided by law in civil cases." Such an appeal is different from that which is taken by exceptions to the award, and was evidently intended to bring into review before a court of error the law questions arising under the objections to the location. It is very plain that the act contemplates that the effect of such appeal shall not be to suspend the proceeding, and, as the order is an intermediate one, we take it that it was the legislative intent that an appeal therefrom should be governed by the provisions of the Code concerning appeals from interlocutory orders, unless it can be said that the order is in legal effect a final judgment.
The general rule is that a judgment, to be final, must dispose of the case as to all of the parties, and finally dispose of the subject-matter of the the litigation. Champ v. Kendrick, 130 Ind. 545, 30 N. E. 635; Home, etc., v. Globe, etc., 145 Ind. 174, 44 N. E. 191; Keller v. Jordan, 147 Ind. 113, 46 N. E. 343; 2 Ency. of Pl. & Pr. 72. Mr. Black says: "An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some step. question or default, arising in the progress