negligence in reference to highways and bridges. This rule, for example, prevails in New York (34). It must not be supposed, however, that the states can be grouped geographically in this matter. For example, the middlewestern state of Michigan has held that in the absence of a statute, a city is not liable for injuries due to the unsafe conditions of a city street negligently permitted to remain in that condition by the city (35). Judge Cooley dissented in an elaborate opinion, holding that a city or village should be held liable.

§ 53. Same: Effect of power to control officers. The Supreme Court of the United States has decided that the District of Columbia is liable for injuries due to the unsafe condition of its streets (36). This case was an interesting one, because the power of appointing and controlling the persons in charge of the streets was vested in officials of the United States government, so that in holding the district liable the court had to lay down the principle that ability to appoint or control the officer in question is not the test of liability for his acts. The Massachusetts supreme court seems in many cases, however, to make much depend upon that question. For example, in one case it says: "The law does not hold parties responsible for the negligence or want of skill of those over whose selection and employment they could exercise no direction or control" (37). In the case in which this language was used, they held a town not liable for injuries

(34) Conrad v. Ithaca, 16 N. Y. 159.

(35) Detroit v. Blackeby, 21 Mich. 84.
(36) Barnes v. Dist. of Col., 91 U. S. 540.

(37) Walcott v. Swampscott, 1 Allen (Mass.) 101.

caused plaintiff by a collision due to the negligence of a driver employed by the town highway surveyors in repairing the highway.

§ 54. Same: Distinction between city and country roads. The distinction drawn by the third group of states, between city streets and county highways, may not at first sight be obvious, but appears to be valid. City streets are chiefly convenient means of getting about from place to place in the city, i. e., they are maintained by the city primarily for local purposes. County highways, on the other hand, are means of intercommunication between the different portions of the state, and so are maintained by the counties and towns as agents of the state. This distinction is borne out by the recent good roads movement in New York, Wisconsin, and other states, in which the state is aiding in a financial way the rural corporations in constructing roads. No one thinks of having the state defray the expenses of paving city streets, in whole or in part.

§ 55. Liability for negligent conduct of public work. The public works of a municipal government are as a rule carried on for purely local purposes and the city, if our principle be logically applied, should be liable for negligence in connection with the same. This seems to be the law. In Bailey v. Mayor (38) the plaintiff was injured by the negligent and unskilful construction of the Croton dam, a part of the work undertaken by the city of New York to secure a water supply. The city was held liable, and this result was reached even though

(38) 3 Hill (N. Y.) 581.

the commissioners who had charge of the work were appointed by the governor and senate of the state. The duties, said the court in substance, are corporate and local; not state and governmental. The power to carry on the enterprise was granted for the local advantage of the inhabitants of the city.

§ 56. Same: Effect of deriving revenue therefrom. In many cases emphasis is laid by the courts in their opinions on the fact that the city derives a revenue from the public work in question. For example, in Aldrich v. Tripp (39), in which a city street was rendered unsafe by a stream of water thrown across it from a city hydrant, the city was held liable for resulting injuries, stress being laid upon the fact that the city derived a revenue from the water rentals. That it is not the revenue feature which determines the liability, however, seems clear when we examine the cases relating to the negligent construction or management of sewer systems, from which the city derives no revenue. In Murphy v. Lowell (40) the injury to the plaintiff was caused by the negligent manner in which a blast was fired by workmen constructing a sewer. The city was held liable. The rule may well be that, in the case of property primarily used for state or governmental purposes, the city is liable if it derives a revenue from the same, otherwise not; but in the case of property used primarily for private and municipal purposes, it seems the city is liable whether revenue is derived from the same or not. In a few jurisdictions, however, the same distinction is taken in dealing with

(39) 11 R. I. 141.

(40) Rome v. City of Worcester, 124 Mass. 564.

these cases that we have noticed elsewhere, viz., liability is made to turn very largely upon the question of control and whether the municipality voluntarily undertook the work in question. For example, in a recent Massachusetts case (41) the state law required the city of Worcester to build a certain sewer, and the court held the city exempt from liability for negligence in connection with the same.

§ 57. Negligence in management of municipal property. Closely connected with the questions discussed in the preceding paragraph, indeed inseparable from them, is the question of the liability of the public corporation for negligent management of its property. At the outset we must draw a distinction between injuries which occur because of the negligence of the municipality in failing to keep its property in a safe condition, and injuries which arise from what may be called, for want of a better term, the active negligence of the corporation or its agents in using the property. A failure to observe the distinction has led some courts astray, as we shall see. The distinction suggested is based upon the ordinary law of torts, which exacts from the owner or occupier of property a duty to use reasonable skill and care to keep his premises in a reasonably safe condition; if he does not and a person who is on the premises is injured because of the unsafe condition, he may recover from the owner or occupier. This right is limited, however, to persons described in the law of torts as "invited persons" as distinguished from trespassers or mere licensees. The real question for us is: Does this rule apply to public

(41) 188 Mass. 307.

corporations? We have already seen that it does not apply to quasi-municipal corporations which are using the property for public purposes simply, such as county courthouses, jails, etc. According to the weight of authority, also, as we have also seen, the same rule of exemption applies to a municipal corporation in dealing with property devoted to public, governmental purposes.

§ 58. Same: Effect of deriving revenue therefrom. In both cases, however, if the public corporation derives a revenue from the property, it has ceased to use it for purely governmental purposes and becomes liable for injuries resulting from the unsafe condition of the premises. In Worden v. New Bedford (42) the city had let the city hall for a rental to be used for a private exhibition, and was held liable for injuries which plaintiff received by falling through a trap door which had been negligently left in an unsafe condition. In this class of cases, it seems that it is immaterial who created the unsafe condition; the question is, did the owner or occupier use reasonable skill and care to keep the premises in safe condition? If reasonable care would have prevented the accident, the city is liable even though someone not connected with the city created originally the unsafe condition. The rule of non-liability of the city if the property be devoted to a public purpose and no revenue be derived from the same was enforced in Hill v. Boston (43), in which a child attending one of the Boston public schools was injured because of the unsafe condition of the stair case of the school building.

(42) 131 Mass. 23.

(43) 122 Mass. 344.