The city is not charged with any misuser or non-user of its " legislative power," neither does the opening or not opening, the improvement or non-improvement of streets, in any manner enter into the gravamen of the plaintiff's action. The legislative power of the city was exhausted by passing an ordinance that Clay street should be opened as a public thoroughfare; its executive power was exhausted in opening the street under the ordinance. All that remained for the city to do thereafter, was to perform the purely ministerial duty of keeping in repair the thoroughfare it had created.
The existence of this duty is deduced from the fact that the charter (Comp. Laws, p. 948, Sec. 13), confers upon the city power to keep the streets in repair. That power is not a prerogative but a trust; duty is its correlative term. That duty, howeverit may be owing to the public, is also due to the individual citizen, and if he sustain special damages from a neglect of it, he may have his action to recover such damages.
This principle is established by the leading cases. (Henly v. The Mayor of Lyme Regis, 15 Com. Law, 486; Mayor of N.Y. v. Farzee, 3 Hill, 612 (615 a); People v. City of Albany, 11 Wend. 539; Hudson v. The City of N. Y., 5 Sand. 289; Rochester White Lead Co. v. City of Rochester, 3 Comst. 463.)
However the general obligation may have been qualified by reason of the grading, it still remained true that the city was bound to make use of reasonable and proper precautions to secure the citizens against the dangers to which they were exposed by the condition of the streets while so under repair. (See Willard v. Newbury , 22 Vt. 458; Carrier v. Lowell, 16 Pick. 170.)
JUDGES: Mr. Justice Terry delivered the opinion of the Court. Mr. Chief Justice Murray concurred.
OPINION
TERRY, Judge
The obligation of a municipal corporation to keep the streets in repair is necessarily suspended while they are actually undergoing such alterations as, for the time, render them impassable or dangerous.
At the time of the injury complained of, the street was being graded by one Babcock, under a contract with defendant, and the character of the work necessarily rendered said street unfit for a public thoroughfare, and this fact was a matter of general notoriety.
It is said that the contract of Babcock only related to the carriage way of the street, extending from one sidewalk to the other, and that the obligation of the city to keep the sidewalk in repair was not suspended because repairs or alterations were being made in the carriage way.
The Common Council, by ordinance, required the owners of property along the line of improvement, to grade the sidewalks, and the alteration of the whole street was progressing at the same time. The defendant had no control over the workmen employed, and, as the law requires all such contracts to be given out to the lowest bidder, could not even select the contractor.
It is a well settled rule that " whenever a person is absolutely compellable, by law, to employ a particular individual in a given matter, the law which compels him to employ that individual, takes away his responsibility arising from the acts of that individual. (Story on Agency, Sec. 456.) For any injuries, arising from negligence in the manner of conducting the work, we are of opinion that the liability rests upon the contractors, and not upon the city. (Reedy v. London and N.W. Railway, 4 Welsby H. and G. Exchequer, 244.)
Judgment reversed.