The Evansville journal., 1868-04-28

OF Judgment COmmlLJeQ therein.
The only matters complained Of
I which could, with any reason be re-
garded as ministerial. are the alleged
negligent failure to keep the engines
+ in proper repair and the unskiitUl-
ness. carelessness. IncOmpetency and
negligence of the persons employed
/ to control and operate them. If,
however, there was not an adequate
supply Of water in the reasonable Vi
cinity Of the fire to extinguish the
T flames, as the plaintiffs allege, it is
difficult to see how the loss can be
attributed TO the want Of care and
skill on the part of the engineers. or
to the fact that the engines were not
In good repair, as both engines and
competent engineers would have been
useless without an adequate supply of
water But we place the decision of
the case upon broader grounds. It
could not have been intended
by the legislature, in conferring
on the Council power TO organize
a fire department, that they
should thereby undertake abso-
lutely to prevent loss by fire IN all
cases, or become responsible as IN
surers IN case of failure Human
skill and ingenuity are not competent
to always resist the power Of that de-
stTuctive element and the most that
can be expected from the public au-
thorities is the adoption Of such means
as may be reasonably within their
power TO guard as far as they may
against such losses, and aid In ex-
tinguis such nres. These are all
legislative or judicial in their nature,
depending upon the wisdom and judg-
ment Of the Council, and cannot be
the subject Of legal liability to indi-
viduals. t.'<
There Is but little, if any. analogy
between the powers aud duties de-
volving on these municipal govern
ments, in the organization of fire
department, and those In relation to
the Improvement Of streets, and the
construction Of bridges. culverts and
sewers. A street, when improved,
is a public highway, open to
the free use of all, and II
is an old and well-establish-
ed principle that the corpora
ton is bound to keep them In proper
repair or condition, and is resposible
for the damages cause by a neglect Of
y
Is readily traceable to its legitimate
cause.-the improper condition Of the
highway, because it results directly
from it. 1t is otherwise, however, in 1
case Of loss by fire. There the
loss is caused directly by the
fire, and not by the want of skill
in an engineer or from the fact |
that the engine was out of repair.
These facts had nothing to do in ig-
hitting the flames. Possibly, if the
engines had been in good order, and |
Ia the hands of skillful engineers, all /
necessary aids eoncurring. the flames
might have been arrested and the fire /
extinguished, and much of the dam
age thereby avoided. Still, the want /
of skill on the part of the engineer, or /
the fact that the engine was out of /.
repair, would only in a remote degree |
contribute to the injury. The Hncer- I
tainty in such cases of tracing the fail /.
ure to its proper and legitimate cause /
would necessarily introduce a
species of most unsatisfactory |
and uncertain evidence and would |
result in practically making mu-
nicipal corporations insurers against /
all losses by fire within their corporate /
limits. rlre departments have existed I
IN the cities for time out Of mind, and /
there is not perhaps a city in existence
in which the corporate authorities
have not exercised the power to use
all proper means for the prevention Of
losses by fire. 1t is an important
branch of such municipal govern
ments, aDd has engaged their most
earnest and serious consideration;
and yet, Notwithstanding the many
millions of property destroyed annually
in cities by fire, the counsel have not
US to single authority for
holding the corporation liable for such
losses, and if any such exists, we are
not aware of it.
In our judgment, both reason and
the soundest public policy forbid that
such a liability should be imposed.
The judgment is affirmed with costs.