Brunson v. City of Santa Monica

CONREY, P. J.

In this action judgment was entered in favor of the defendant under an order sustaining its demurrer to plaintiff’s amended complaint without leave to further amend said complaint. Plaintiff appeals from the judgment.

In the complaint it was alleged that the defendant maintained a dumping ground, “the same being the street, highway, public work and property of said city”; that defendant and its agents, officers, servants, and employees negligently and carelessly operated said dump so that it was in a dangerous and defective condition, and maintained a fire in the pit thereof; and did “compel and permit the plaintiff to use said dump so maintained, operated, and conducted as to cause the horses and wagon of the plaintiff to fall therein and in the pit thereof”; with consequent damage and injury.

[91]

In the absence of a statutory provision permitting it, an4"^ action will not lie against a municipal corporation for damages caused by the negligence of its officers, agents, and servants in the performance of the public or governmental duties of such corporations. On the other hand, it has been established that such corporation is liable for damages caused by negligence in its conduct of some kinds of business carried on by it for the public use, such as gasworks, electric-works, and waterworks.

(Davoust

v.

City of Alameda,

149 Cal. 69, [9 Ann. Cas. 847, 5 L. R. A. (N. S.) 536, 84 Pac. 760].)

In the absence of a statutory provision declaring otherwise,1' a municipal corporation in California is not liable in damages for the neglect of its officers or agents in the maintenance or care of streets or bridges

(Winbigler

v.

City of Los Angeles,

45 Cal. 36) ; nor for such negligence committed while engaged in repairing a sewer.

(Chope

v.