Jones' Administrator v. City of Richmond , 118 Va. 612 ( 1916 )

Haebison, J.,

delivered the opinion of the court.

This action was brought by the plaintiff in error to recover of the defandant in error damages for the death of his intestate, which it is alleged was caused by the negligence of the defendant city.

The deceased was a conductor on one of the street cars of the Virginia Railway and Power Company, and was running his car south along Perry street. When he reached the intersection of Perry and Fifteenth streets, his car collided with one of the city wagons, resulting in what, at the time of the accident, appeared to be a slight bruise and abrasion not larger than a five-cent piece on the top of one of his feet. This wound, however, subsequently became serious, and on the 9th day from the date of the injury, the patient died with what is commonly known as lockjaw.

It appears that, through her employees, the- city was engaged in regrading and improving McDonough street, one of the old streets in its Manchester addition, which involved the removal of a portion of the surface and hauling this surplus earth to a vacant city lot where it was needed. On the 20th of May, 1913, one of the city wagons, drawn by two mules and driven by an experienced and competent driver, was proceeding with a load of earth from McDonough street to the place of deposit, and in crossing Perry street the collision with the street car occurred. The negligence alleged by the plaintiff is that the wagon was operated with a defective brake, which failed to control it; that the driver drove the wagon at a rapid and excessive rate of speed, so that it could not be properly controlled or stopped; that the driver permitted the reins to remain slack in Ms hands and thereby failed to have proper control of his team, etc., and that these negligent acts combined to cause the wagon to run into the street car and so injure the plaintiffs intestate that he died. These allegations of negligence were vigorously denied by the defendant city, and the contention earnestly made that the accident was the result of the negligence of those in charge of the street car, in running the same at an excessive rate of speed, and in failing to keep a lookout, which would have disclosed the approáeh of the wagon to Perry street in ample time for the car to have come to a full stop and avoided the collision with the city’s wagon.

The trial resulted in a verdict for the defendant.

At the request of the city, and over the objection of the plaintiff, the court instructed the jury, in substance, that they must find for the defendant; that the city could not be held liable for the negligence of the wagon driver, because, at the time of the accident, he was engaged in the discharge of a governmental function.

The weight of authority sustains the view that the work which the city was doing in the instant case was not of such a character as to exempt it from liability for the negligent acts of its servants' and employees. In grading and improving McDonough street the city was not discharging a governmental function, but was merely performing a ministerial duty which afforded it no immunity from liability for its negligence.

In McQuillin on Municipal Corporations, vol. 6, pp. 5431,-5433, it is said “that a municipality acts ministerially in constructing and repairing public improvements or work, including streets, and hence is liable to persons injured by negligence in the performance of such duties, and this is true notwithstanding the improvements are a public benefit, except, perhaps, where a building is being constructed for public use, such.as a courthouse or the like. So it has been held in Missouri, a municipality is liable for the acts of its servant while repairing streets, in assaulting a traveler in the line of his duty, on the theory that the repair of streets is not a governmental duty.”

As to when a municipal corporation is acting ministerially the rule is well stated in Dillon on Municipal Cor. (5th Ed.), vol. 4, secs. 1665, 1741. In note 1 to the last-mentioned section the following statement of the law is italicized: “A corporation acts judicially in selecting and adopting a plan on which a public work shall be constructed; yet as soon as it begins to carry out that plan, it acts ministerially and is bound to see that it is done in a reasonably .safe and skillful manner

In Quill v. New York, 36 App. Div. 476, 55 N. Y. Supp. 889, a city cart removing ashes came into collision with the plaintiff, who sued the city for the damages sustained hy her. The defense was made that the city was not liable because it was performing a governmental function. The court held that such work was not governmental. The review of the decisions in the case last cited and the reasoning is convincing.

A recent and well considered case is Hewitt v. Seattle, 62 Wash. 377, 113 Pac. 1084, 32 L. R. A. (N. S.) 632, which holds that the duty of a city to keep its streets in repair is not a governmental hut a ministerial duty, and that the city is liable to a pedestrian negligently run down and injured by its superintendent of streets while driving an automobile in the performance of his duty.

This subject is discussed and authorities cited in the case of Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294, where Judge Riely, speaking for this court, points out very clearly the distinction between the exercise of those governmental and discretionary functions for which a city is not liable, and the negligent performance of ministerial duties for which it is liable. It is there said: “The defendant was empowered hy its charter to lay off streets and walks, and improve the same, hut it was wholly within its discretion when and where it would do so. Eor the omission to exercise the power, it being legislative and discretionary, it would not be liable for an injury occurring in consequence of the omission, although when the power was exercised, the duty to keep the streets and sidewalks in a reasonably safe condition for travel would become a ministerial and positive duty, for the neglect whereof it would be liable for an injury resulting therefrom. 2 Dillon Mun. Corp. (4th Ed.), secs. 949, 1048.”

We are of opinion that in grading and improving McDonough street and hauling the surplus earth therefrom to a place of deposit elsewhere, the city of Richmond was not exercising a governmental function, but was performing a ministerial duty, and that it would be liable for an injury resulting from the negligent performance of such duty. The instruction under consideration was, therefore, erroneous, prejudicial to the rights of the plaintiff, and should not have been given.

The defendant city contends that the injury to the decedent’s instep was not the proximate cause of his death; that the assault of the tetanus or lockjaw germ, which was after the injury to the foot, was the intervening and proximáte cause of death, for which the city was not liable. This position, under the facts and circumstances of the instant case, cannot be sustained. The evidence shows that the deceased • was attended by a physician on the day of the accident, who regarded the injury as very slight, but dressed the wound, gave the necessary directions as to its treatment, and told the patient to notify him if he needed further attention. On the seventh day thereafter the doctor was sent for and found that the patient had been suffering for a day or two with pain in the back of his neck and stiffness of the jaws. The doctor at once recognized the beginning of lockjaw, and hurried him to a hospital where he died of lockjaw two days thereafter. After he was taken to the hospital he was attended by two physicians, both of whom say that he had a well-defined case of lockjaw, caused by tetanus germs which gained entrance through the wound on his foot; that there was no other wound on his body through which the infection could have entered; and that there must be a broken surface somewhere in the skin for the bacillus to get into the body.

The record shows beyond dispute that the injury sustained by the plaintiffs intestate residted from the collision between the street car and the city wagon; and that such injury admitted the germs which produced the lockjaw which caused his death in a few days. In other words, the city’s alleged negligent act opened the way for the trouble that did not cease to operate until the fatal result was reached, without any intervening cause whatever, thereby making the injury the proximate cause of the death.

This subject is considered in the case of Allison v. Fredericksburg, 112 Va. 243, 71 S. E. 525, which is also reported and fully annotated in 48 L. R. A. (N. S.) 93. The facts of the two cases are wholly different, and there is nothing in the Allison case to sustain the view that the injury in the present case was not the proximate cause of the death of the deceased. In L. R. A. where the ease is reported, numerous authorities are cited, among them Armstrong’s Admr. v. Montgomery St. Ry. Co., 123 Ala. 233, 26 Sou. 349, a very similar case to the present. There the deceased had two fingers fractured and lacerated in a street car accident. In a few days he died from septicemia or blood poisoning. The physician said that septic infection meant poisoning of the system from germs, or products of germs introduced into the blood through wounds. The same contention was made there that is now made in the instant case. In refuting the proposition that the injury sustained by the intestate was not the proximate cause of his death, but that his death was the result of an independent intervening cause, to-wit: the septicemia, or blood poisoning, which set in or began to affect his system several days after the injuries were received, the court said: “It is difficult to conceive how this position can be even plausibly supported. It is clear on the evidence that intestate’s death resulted in direct line and sequence of causation from the injuries he received in the fall from the car. . . . The fall produced the injuries, the injuries produced blood poisoning, and the blood poisoning produced death. There was no break in the chain of causation from the alleged negligent act to the death of the intestate. The blood poisoning was not an independent cause. It was not a superseding cause. It was itself a result, or, perhaps more accurately, a mere development of the injuries. It is not an important consideration, even if it be a fact, that blood poisoning is not a usual and ordinary result or development of wounds of the character inflicted upon the intestate. . . . The logical rule in this connection, the rule of common sense and human experience as well, is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would,' at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. 1 Shear. & Red. on Reg., sec. 29.”

The case cited is high and very pertinent authority, for there can be no valid distinction, so far as the proximate cause of death is concerned, between wounds admitting germs producing blood poisoning which results in death, and wounds admitting germs producing lockjaw which results in death. In either case there is a reasonable possibility of the fatal trouble being developed in consequence of the wound.

The only remaining objection made in the petition for a writ of error is to the action of the court in refusing five instructions asked for by the plaintiff.

We are of opinion that instruction Ro. 1, asked for by the plaintiff, was defective in several particulars, and was, therefore, properly refused. This instruction is very confusing and misleading. It tells the jury that if the driver of the city wagon was guilty of negligence in manner and form as alleged in the declaration, or some count thereof, etc., they should find for the plaintiff; thus devolving upon the jury the task of evolving from a long declaration containing several counts pertinent matter upon which to rest their verdict. We are of opinion that instruction Ro. 1 asked for by the plaintiff was properly refused. It is very confusing and misleading and is further erroneous in that it concludes with a direction to the jury to find for the plaintiff, when it does not contain a complete statement of all facts necessary to a recovery.

We are further of opinion that instruction Ro. 3, asked for by the plaintiff was erroneous and properly refused. This instruction is subject to the same objection as Ro. 1, in that it concludes with a direction to the jury to find for the plaintiff, without containing a complete statement of the facts necessary to a recovery. It is further defective in telling the jury that at crossings at the intersection of streets, the rights and duties of such companies and the public are equal, whereas the traffic ordinance of the city of Richmond expressly provides that “all vehicles and street cars going in an easterly direction or westerly direction shall have the right of way over all vehicles or street cars going in a northerly or southerly direction.” The testimony is undisputed that the street car was going south and the wagon going east, which, under the ordinance, gave the wagon the right of way at the time of the collision.

We are further of opinion that it was error to refuse instructions Ros. 2, 4 and 5, asked for by the plaintiff. These instructions are in the usual form in cases of like character, and do not appear to be prejudicial to the defendant.

The defendant in error insists that from the record, taken as a whole, it appears that under correct instructions a different verdict could not have been rightly found, and, therefore, that the judgment complained of should be affirmed. Without comment upon the evidence or expressing any opinion upon the merits of the case, it must suffice to say that under the facts and circumstances shown of record we would not feel warranted, under our practice, in denying the plaintiff the right to have his case submitted to a jury under proper instructions.

Ror the errors pointed out in the instructions, the judgment complained of must he reversed, the verdict of the jury set aside, and a new trial granted not in conflict with the views expressed in this opinion.

Reversed.