Chope v. City of Eureka

McFarland, J. This is an action to recover damages for alleged personal injuries, caused by the plaintiff falling into an excavation for a sewer within the corporate limits of defendant, a municipal corporation. A general demurrer to the complaint was overruled; a motion for nonsuit was denied; and the jury found a verdict for plaintiff. The defendant appeals from the judgment, and from an order denying its motion for a new trial.

The defendant was incorporated by a special charter in 1874. (Stats. 1873-74, p. 91.) Its legislative body is a common council consisting of five members. The charter also provides for a marshal and certain other officers. The common council is given the powers enumerated in section 4408 of the Political Code, and also certain other special powers; but it is nowhere provided that the corporation shall be liable for injuries suffered by individuals through the neglect of the officers [590]of the corporation to properly perform their duties. The facts upon which the judgment rests are these:—

The records of the proceedings of the common council, introduced in evidence, show the following, and no more: “In regard to certain alley-way nuisances, more particularly that of the sewer leading down the alley from.the Western Hotel and forming a cesspool at the end of said alley-way, the matter was, on motion, left in the hands of the committee on streets, they to take prompt action thereon.”

After this the city marshal, for the purpose of removing said cesspool nuisance, commenced the construction of a sewer; and the jury had, perhaps, the right to find from the evidence that in doing so he acted under the direction of one or more members of said committee on streets. The sewer, while in process of construction, was left open with a twelve-inch plank across it, and without the protection of guards or lights. On a dark night the plaintiff fell into the sewer and was hurt. And for the damages thus received he recovered the judgment.

Without noticing any of the other points made by appellant, it is sufficient to say that it has long been the settled law of this state that a municipal corporation is not liable for personal injuries to individuals, such as that claimed to have been sustained by plaintiff, where there is no statutory provision declaring such liability. There is, no doubt, some conflict of decisions on the question in other states; although it is to he observed that in the New England and some other states there are statutory declarations of the liability. But in California the doctrine above stated has been clearly and continuously adopted; and if any change in the law is desirable, that change must be made by the legislature. And so far, at least, the legislature has shown no disposition to make the change. (Winbigler v. Los Angeles, 45 Cal. 36; Tranter v. City of Sacramento, 61 Cal. 275; Barnett v. Contra Costa County, 67 Cal. 77; Crowell v. Sonoma Co.,