957. Character of duty continued.

958. Municipal duty; construction of drains or sewers.
959. Plan of work.

961. Maintenance of sewers and drains.

962. Governmental duties; maintenance of government.

963.

964.

The public safety.

Destruction of property by mob.

965. Destruction of property for public purposes.

Independent contractor.

976. Defense of fellow-servant.

977. Surface waters.

978. Nonliability for exercise of discretionary or legislative power. 979. Liability imposed as result of negligence.

980. Notice of injury or damage.

1000.

Surface water injuries from plan or construction.

1001. Duty in respect to maintenance of public highways.

1007. Same subject; buildings with their adjuncts and projections.

1008. Poles, wires and similar objects as obstructions.

1032. Injuries through operation.

1033. Liability as affected by notice.

1034. Notice must be shown affirmatively by the plaintiff.

Contributory negligence.

1044. Imputable negligence.

1045. The application of the doctrine of contributory negligence to

those non sui juris.

1046. Duty of the traveler in respect to the use of highways.

1053.

1054.

Condition of the traveler.

Knowledge of danger.

1055. Conduct of the traveler.

1056. Conduct continued; defective vehicles.

1057. Contributory negligence; a question for the jury.
1058. Burden of proof.

1060. Defenses; statute of limitations; lack of funds.

§ 950. In general.

The question of the liability of a public corporation for injuries arising through its negligence is an important one and in some respects the law is well settled. It is not possible, within the limited space given to this subject, to discuss as fully as desirable, its various phases. It might be said that the tendency to hold municipal corporations liable, especially in respect to the condition of their streets, is rapidly increasing and conditions now sustain a recovery which would not have done so a few years ago. This tendency is to be regretted, for all public corporations, including

2

municipal, are governmental agents and engaged to a great extent, if not entirely, in the carrying out of some governmental duty. As said in a previous section, the greater number of personal injury claims might be avoided in spite of court and jury to the contrary by the exercise of ordinary care, caution or common sense on the part of the one injured and further, the care which the state or any of its delegated agencies is required to exercise in the physical protection of the individual while following ordinary and personal avocations, is very slight. For a full discussion of the subject, the reader is referred to various text-books. which treat it at length. 3

§ 951. Negligence; definition.

4

Actionable negligence has been defined as "The inadvertent failure of a legally responsible person to use ordinary care underthe circumstances in observing or performing a noncontractual duty, implied by law, which failure is the proximate cause of injury to a person to whom the duty is due." Another definition • is given as "A breach of the duty to exercise care, by which one to whom the duty is owing suffers damage justly attributable to the breach of duty." And still another," "Negligence is the fai. ure to observe for the protection or safety of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand." From the definitions selected above from many, it will be observed that in order to sustain a recovery in an action based on negligence, there must be established the existence of a duty, its breach, a resulting special damage to the one to whom it is due and the negligence must also be the proximate cause of the damage which involves a freedom from contributory negligence on the part of the one injured. In respect to the liability of a public corporation, the character

1 See Chap. I.

2 See § 485, ante.

Thompson, Neg., Vol. 5; Cooley, Torts (2d Ed.); Williams, Mun. Liab. Tort; Jones, Neg. Mun. Corp.; Shearman & Redfield, Neg.; Am. & Eng. Enc, Law (2d Ed.) tit.

"Negligence"; Wharton, Neg. (2d Ed.).

416 Am. & Eng. Enc. Law (1st. Ed.) p. 389.

5 Jones, Neg. Mun. Corp. p. 3. Thompson, Neg. Vol. 1, § 1.

7 Smith v. City of Leavenworth, 15 Kan. 81.

of the duty must be further established as one on account of which a failure to perform or perform properly will give rise to a cause of action. In the consideration of the subject in following sections the author will endeavor to ascertain the existence of a duty in a particular case, the character of that duty and to whom due. The scope of the discussion of a necessity subordinates the questions of damage, proximate cause and contributory negligence.

§ 952. Some essentials of actionable negligence.

It is not every obligation or duty of a public corporation that gives rise by its breach to a cause of action in favor of an individual. The duties which rest upon a corporation of this character may be legislative or judicial and, therefore, discretionary, or, again, imperative or ministerial.' A breach of the latter where a liability exists at all, creates a cause of action while this is not true of the former class. This proposition will be further considered in a later section.10

Measure of care. Actional negligence arises through a failure to exercise that care which is justly required of one under the circumstances or conditions arising in that particular case. The standard or measure of care is not fixed and varies with the legal status of the one from whom the duty is due and the condition of the one to whom it is due under the peculiar circumstances arising in a single specific instance."1

Damage. To enable one injured by a failure to observe the proper care in the performance of an existing duty, the one to whom it is due must show further that the damages which he claims and for which he seeks recovery are those suffered by him peculiarly and

8 See §§ 953 and 955 et seq., post. 9 Duke v. City of Rome, 20 Ga. 635; Millwood v. De Kalb County, 106 Ga. 743, 32 S. E. 577; Bennett v. City of New Orleans, 14 La. Ann. 120; Sherman v. Parish of Vermillion, 51 La. Ann. 880, 25 So. 538; Flagg v. City of Worcester, 79 Mass. (13 Gray) 601; Mills v. City of Brooklyn, 32 N. Y. 489; Peck v. Village of Batavia, 32 Barb. (N. Y.)

634; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Munn v. City of Pittsburg, 40 Pa. 364. But see Sheldon v. Village of Kalamazoo, 24 Mich. 383. See, also, §§ 958, 959 and 972, post, with many authorities cited.

10 See § 972, post.

11 See §§ 1045 and 1053, post. See Jones, Neg. Mun, Corp. § 4; Ingersoll, Pub. Corp. p. 421.