Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-20

AtSlSldliOLf VI oOllt EIuuE 5ClEIue
which cannot be accomplished without
the infliction of direct, as distin-
guished from consequential, injuries
upon some of its citizens. To hold
otherwise would be a long step
towards sanctioning the ruthless exer-
else Of arbitrary power. Immunity
for mere error of judgment in matters
of governmental cognizance ought not
to be overturned or impaired but
when public works are planned with
such carelessness as to amount to
absence of judgment the reason of the
rule fails and the application thereof
fails with it.
1t is contended, on the question of
negligence, that the city having en-
ployed a competent engineer in the
person Of the city surveyor, to draw
plans and specifications, it has gone
as far as required in the matter of
diligence and cannot be held liable for
the result. This presupposes that
however competent the engineer may
have been, it was his duty, as the
servant Of the city, for whose conduct
the city was responsible, to act in a
careful and circumspect manner in
drawing the plans. The rule is thus
stated in the case of Lion V. Baltimore
City Passenger Railway Co., AZ L. R.
A. 1877 "The employment Of COM
petent engineer to direct the work is
not the fulfillment of duty to avoid
doing injury to another when, not
withstanding the engineers compe-
tency, the work as constructed does
cause injury. The test of liability is
not the fitness of the engineer, but
the efficacy of the work"
In its brief, the appellant lays great
stress on the case of Reardon V. San
Francisco, 6 Pac. 317, in which the
facts were greatly like the ones in
the case at bar; but that case is cas-
lily distinguished from the present one
on two grounds, first: the court held
that there was no sufficient pleading
of negligence on the part of the mus
nicipality; and, second: in California,
at that time, there was no statute
like ours, quoted above, granting a
cause of action to a person injured
by the acts of a municipality in its
corporate character. Miles " Wor-
cester, supra, is more applicable to
the case at bar and is founded on
better logic. From the weight and
reason of the precedents, the rule may
be thus stated: A municipal corpora
tion Is not liable for mere conseuuen-
tial injuries resulting from ordinarily
careful administration of a reasonably
prudent plan Of street improvement
devised by the municipality in it's gov
ernmental capacity; but in the execu-
ton itself of any public works, the
city acts ministerlally, or in the words
Of the statute "ln its corporate char
acter and within the scope of its au-
-hority'" and for its negligence or
maladministration in that relation re-
5ulting in an injury to the rights of
another 1t Is liable in the same way
md for the same reason as a natural
person or private corporation would /
De under the same circumstances of |
executive management.
We conclude that negligence may
le imputed to a municipality in the
EXECUTION of plan of public improve
nent devised by it in it's legislative |
capacity. Negligence is a question of |
act. In the case of Palmer V. Port
and Railway, Light & Power Co., 1OS
pac I'll, this court declared the rule |
hat 1t is only where the facts are
such that all reasonable men must |
lraw the same conclusions from them /
nat the question of negligence is ever
considered as one of law for the court |
The precedents are so thoroughly col
ated by the opinion of Justice King !
n that case that further citation on
his point is unnecessary.
The standard of care to be observed
~ the city in such cases is such that
reasonably prudent and careful man
n like circumstances would use if the .
esponsibillty for damages rested upon
lim. All would most likely agree
hat a wide and level pedregal would
'e safe foundation for a fill of the
character and dimensions described in
he city ordinance. None would prob
bly, contend that a steep declivity of
hitting sand would be suitable for
hat purpose. But between these ex-
remes the question is one of fact
which must be decided by the jury or
he court acting in the capacity of a 4
rier of the facts. The right of the
ity to decree by ordinance that Iry-
ng avenue should be improved by
llling 1t to the established grade may /
e well admitted and it may be fur
her conceded that the terms of the
rdinance itself would not constitute
ufticient proof of negligence on the
art of the city. But when the ordin-
nee, whatever its terms may be. is
be applied in practice. a ministerial
uty on the part of the city arises,
INVOLVING care and prudence of ad-
1t thus became ques-
ion of fact in the case at bar. whe-
her the city, in carrying out the pro-
ect of improving Irving avenue. acted i
S a reasonably careful and prudent |
ldlVldual would act in that situation,
nder like responsibility, in piling
lany thousands of yards of earth
pom a hillside where the ground was
oit and swampy, without providing
ny turther foundation or making any
ttort to retain it in place. This issue |
[ fact was submitted to the court |
instead of a jury as a trier of the
act and has been determined against II
he defendant. We cannot disturb this
onclusion Of fact for which there is
in the testimony.
The defendant further urges, how
yer. that the work was let to an in
ependent contractor who alone is an
werable for the injury resulting to |
ne defendant If he has any cause of
ction AZ all. The general rule is
hat an employer is not liable for the