Exemption from recognized liability cannot be sustained unless expressly given; doubtful case is resolved against corporation. 8 McQuillan Mun. Corp. sec. 2064. City may be sued for tort. Fleming v. Memphis, 148 S.W. 1057.
Question is whether proviso removes city from application of Rev. Laws, 5649, and kindred sections Proviso is construed with reference to immediately preceding parts, forms part thereof, is limited thereto, and is not applicable to unrelated parts. 2 Lewis Suth. Stats. Const., sec. 352. "Nothing herein shall be so construed as to make the city liable," clearly applies to things provided therein. City does not possess power which legislature does not. 19 R.C.L. 706. Unfair and discriminatory laws shall not be passed. Durkee v. Janesville, 28 Wis. 464.
Act may be void though not expressly prohibited by constitution, if it is contrary to principles of social compact. Britton v. Board, 61 P. 1115; Calder v. Bull, 3 Dall. 387.
Where city has power to remove nuisance which it creates or permits to remain in streets, it is liable for injuries resulting therefrom. Barnes v. Carson, 33 Nev. 17; Burks v. South Omaha, 113 N.W. 241. There are majority and minority lines of decisions as to whether street improvement work is ministerial or governmental. McDonough v. Virginia City, 6 Nev. 90; Barnes case, supra.
Claims arising ex delicto need not be presented before suit brought. "Indeed, we do not see how such claims could be audited." Sheilds v. Durham, 23 S.E. 794; Adams v. Modesto,63 P. 1083. City cannot determine value of life of person killed through its neglect. Nance v. Falls City, 20 N.W. 109.
Personal representative of decedent may maintain *Page 395 action. Rev. Laws, 5648, 4997; 9 McQuillan, sec. 2064; Keever v. Mankato, 129 N.W. 158.
Complaint supports exemplary damages. Lange v. Schoettler, 47 P. 139; Perry v. Tonopah M. Co., 13 Fed. (2), 865. Excepting mere statement alleged as conclusion, amended complaint shows excavation was outside part of street used for vehicles, and therefore was not menace or nuisance to them. Sidewalks cannot lawfully be used by them. Mercer v. Corbin, 20 NE. 132. Cities have wide discretion to determine how much of highway shall be used for vehicular and for pedestrian travel. 2 Elliott, Roads and Streets (4th ed.), 801. Appellant's citations, dealing with obstructions in streets, are not applicable. Anderson v. Feutch, 31 Nev. 501, was based on negligence in digging and leaving unguarded mine shaft in violation of express statute. There is no similarity either in that case, or Barnes v. City of Carson, 33 Nev. 17, or Perry v. Ton. M. Co., 13 Fed. 865.
Work was improving streets under section 10a of charter — a governmental act; though negligently done, city would not be liable. 3 Dillon (5th ed.) secs. 1128, 1129; 28 Cyc. 1257. Rule of immunity extends to discretionary power, though plan be defective, or judgment erroneous. 28 Cyc. 1262; Tronty v. Sacramento, 61 Cal. 271; White, Mun. Neg. sec. 31; Detroit v. Beckman, 34 Mich. 125; 6 Dillon, 1626; 29 Cyc. 1285; Blyhl v. Waterville, 58 N.W. 817; Hoye v. Philadelphia, 81 Pa. 44. City need not maintain barriers along embankment to protect vehicles. Roberts Adm. v. Baton, 288 N.Y. 420.
Proviso is not limited to section immediately preceding. Legislative intent must be considered without regard to position of proviso. Wartensleben v. Haithcock, 1 So. 38; United States v. Scruggs, 156 Fed. 940; 25 R.C.L. 984. Clear meaning is that no court shall so construe charter as to make city liable. *Page 396
City may be specially exempted from liability by its charter. 28 Cyc. 1343.
Deceased had mother and father living. Plaintiff should have sued in individual, not representative, capacity. Rev. Laws, 4996, 4997, 5647, et seq.
OPINION This action was instituted to recover damages for the death of Emma K. Revera, which was occasioned by the automobile in which she was riding falling over an unguarded concrete retaining wall constructed by the authorities of the city of Reno at the intersection of Ralston and Maple Streets within the city.
The action was brought under sections 5647 and 5648, of the Revised Laws of Nevada, in the name of Virginia Pardini, as the personal representative of the deceased, against the city of Reno alone. The case comes to this court upon appeal from the judgment of dismissal of the action, entered upon an order sustaining the defendant's demurrer to the plaintiff's amended complaint.
The legal questions presented by the rulings upon the demurrer are: First, does the statute which constitutes the defendant's charter exempt the city from liability for a wrongful death occasioned by the neglect of the city to make and keep its streets reasonably safe for travel? Secondly, has plaintiff, as the personal representative of her deceased minor daughter, legal capacity to sue?
The undisputed facts are these: The statute which constitutes the defendant's charter grants to the city council, among other things, exclusive authority and control over the streets of the city, coupled with power to raise means for their maintenance, improvement, protection, and repair. In the exercise of their powers, the authorities of the city undertook to improve Ralston and Maple Streets at the place where they intersect by dividing each street into two public ways, a high street *Page 397 and a low street. On the dividing line of each street there was constructed a concrete retaining wall varying in height from three to ten feet. On the west side of the wall on Ralston and on the north side of the wall on Maple the street was filled, graded, and paved level with the top of said wall for its entire length. Prior to, and on, December 28, 1924, the high and low portions of each street were open and used by the public for travel. On said date an automobile in which Emma K. Revera was riding was proceeding northerly along the high and paved portion of Ralston Street, when it fell over said concrete retaining wall, and dropped a distance of ten feet, killing her. At the time of her death she was 17 years of age, unmarried, and contributing by her labor to the care, support, and maintenance of herself and her mother. She left surviving her as her only next of kin her mother, Virginia Pardini. Letters of administration on her estate were issued to her mother, who caused to be filed with the clerk of the city of Reno a claim or demand for $20,000 as damages accruing from the death of her daughter, which claim or demand was considered by the city council and rejected. Thereupon this action was begun by plaintiff in her capacity as administratrix to recover both punitive and compensatory damages accruing to her from the death of her daughter.
The complaint contains two charges of negligence: One, that the defendant, with full knowledge of the dangerous condition in which Ralston and Maple Streets were left by the work undertaken for their improvement, willfully, wantonly, and negligently placed no railing, barrier, or other protection along and on top of said retaining wall for the safety of travelers. The other, that the defendant, with full knowledge of the dangerous condition of said streets, willfully, wantonly, and negligently failed, refused, and neglected to complete the work of construction of said retaining wall according to the plans and specifications adopted for the improvement of said streets by the erection and maintenance thereon of a strong iron guard rail for its entire *Page 398 length. The complaint assumes that it was the duty of the city, under the grant to it of exclusive authority and control over its streets, coupled with power to raise means for their improvement, to exercise ordinary care and diligence to see that its streets were reasonably safe for travel, and charges that the death of the plaintiff's intestate was caused by its neglect to perform this duty.
1. The first legal question presented by the defendant's general demurrer to the complaint arises out of a proviso appearing in section 2 of article 16 of the statute which constitutes the defendant's charter, which reads:
"Provided, nothing herein shall be so construed as to make the city liable for any damages suffered or incurred by any person for or by reason of any neglect of the city or any of its officers."
The trial court was of the opinion that the proviso defeated plaintiff's right of recovery in this action. The proviso is nothing more than a legislative declaration that nothing contained in the act shall be construed so as to make the city liable for any damages suffered or incurred from its own neglect, or the neglect of any of its officers. If, then, there is nothing in the act which either expressly or by necessary intendment makes the city liable for damages suffered or incurred from its negligent failure to keep its streets in safe condition, the proviso is ineffective to defeat plaintiff's right to recover. The only provision contained in the defendant's charter with respect to streets is to be found in article 11, which creates the office of superintendent of streets, and in section 10 of article 12, as amended by the Statutes of 1923, p. 113, c. 77, which provides that the city council, among other things, shall have power to lay out, extend, change the grade, open, vacate, and alter the streets and alleys within the city, and by ordinance require and provide for the improvement thereof, and for that purpose, and for the purpose of defraying the expense thereof, may divide the city into districts. There is nothing in the language of section 10 as amended imposing the exercise of these powers upon the *Page 399 council as a duty. The section, as we interpret it leaves it optional or discretionary with the corporate authorities whether they will exercise the powers or not.
2. Such was the interpretation placed in a similar provision contained in the statute which constituted the charter of Virginia City. McDonough v. Virginia City, 6 Nev. 90. It was held in that case that, even though Virginia City under its charter was not obliged to open a street, nor to repair one after it was opened, yet, if a street, when opened, was left in such a defective condition that injuries resulted therefrom to persons exercising proper care, the city was liable therefor, for the reason that, if the city undertake to exercise its optional powers over its streets, the act must be done with that degree of care for the rights and personal safety of individuals which natural persons are required to exercise under similar circumstances. This doctrine is but the affirmance of the rule favored by the great majority of courts that for a failure to keep streets in repair there is an implied common law liability for resulting injury resting upon every chartered municipality. Cooley's Municipal Corporations (Hornbrook Series), sec. 118. The latest expression of the doctrine may be found in 43 Corpus Juris, 974, where it is stated that in most jurisdictions municipalities are held liable, irrespective of any statute expressly imposing liability, for injuries from negligent failure to keep streets in a safe condition, on the ground of implied liability, the authorities holding that, where such corporations are invested with exclusive authority and control over the streets, and with means for their construction, improvement, and repair, a duty arises to the public from the nature of the powers granted to keep the streets in a reasonably safe condition, and a corresponding liability exists on the part of the municipality to respond in damages to those injured by a neglect to perform the duty, unless the charter giving such exclusive control expresslyexempts the municipality from liability for failure to dischargethe implied duty. *Page 400 3, 4. Since the defendant's charter which gives to it exclusive authority and control over its streets does not expressly exempt the city from liability for failure to discharge its implied duty to make and keep its streets reasonably safe for travel, we are of opinion that the rule of implied liability obtains, notwithstanding the omnibus proviso which purports to cover everything, but really touches nothing in particular. The charter of the defendant does not create a liability for neglect to exercise ordinary care and diligence to see that its streets are reasonably safe for travel. So, if the plaintiff can recover in this action, it is because of the doctrine of the defendant's implied common law liability, and not because of anything contained in its charter. The duty of the defendant, implied from the grant of exclusive control over its streets, is not a public duty owing to the public alone, but a private, corporate duty, which (when not expressly imposed) is necessarily implied from such grant. Shearman Redfield on Negligence (6th ed.) sec. 289. The proviso under consideration was introduced into section 2 of article 16 to avoid misinterpretation, and it, as constructed, cannot by implication be extended into a positive enactment to specifically exempt the city from liability for injuries caused by defects in its streets. This conclusion renders it unnecessary for us to determine whether the enactment of the proviso exceeded the just powers of the legislature, and is therefore unconstitutional.
5. Counsel for defendant contend that, in planning and designing the improvement of the streets described in the complaint, the city, through its legislative body, exercised a judicial or discretionary power, and for such exercise it is not liable in a civil action. We do not understand from the complaint that the plaintiff seeks to recover for an injury resulting from a defective plan designed for the improvement of Ralston and Maple Streets, but for one resulting from the negligence of the defendant in not carrying the improvements as planned into execution. The prosecution of the work itself — the carrying of the improvements into execution — being *Page 401 purely ministerial in character, the doctrine invoked has no application. The immunity extended to legislative or discretionary acts of a municipal corporation does not apply to corporate acts of a purely ministerial character. 43 Corpus Juris, 929, citing McDonough v. Virginia City, supra.
6, 7. Counsel for defendant contend that the city was under no duty to erect and maintain a railing or barrier along and on top of said retaining wall to prevent vehicles leaving the traveled way from going over the wall. We concede that such duty is not absolute but, nevertheless, where a railing or barrier is reasonably necessary for the security of travelers on the street, which from its nature would otherwise be unsafe, and the erection of which would have prevented the injury, it is actionable negligence not to construct and maintain such railing or barrier. 43 Corpus Juris, 1060; 4 Dillon, Municipal Corporations, sec. 1696; Elliott, Roads and Streets, sec. 796. The authorities of the city having made provision for the erection and maintenance of a railing or barrier along the concrete retaining wall in the plans adopted for the improvement of said streets, whether it was negligence to suffer the retaining wall to remain without any railing or barrier is a question of fact concerning which we express no opinion.
8. The second cause assigned for demurrer is that the plaintiff, Virginia Pardini, as administratrix of the estate of her deceased minor daughter, is not the proper party plaintiff to maintain this action. As stated at the outset, the action was brought under sections 5647 and 5648 of the Revised Laws of Nevada. Defendant contends that the action can be maintained only under section 4996, Revised Laws, as amended by the Statutes of 1913, p. 28, c. 35, sec. 2; 3 Revised Laws, p. 3326. Section 5647 reads:
"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof then, and in every *Page 402 such case, the persons who, or the corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony."
Section 5648 reads:
"The proceeds of any judgment obtained in any action brought under the provisions of this chapter shall not be liable for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows:
"1. If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then, equally to each, the grandchild or children taking by right of representation; if there be no husband or wife, but a child or children, or grandchild or children, then to such child or children and grandchild or children by right of representation; if there be no child or grandchild, then to a surviving father or mother; if there be no father or mother, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and, provided, further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named."
Section 4996 as amended reads:
"The father and mother jointly, or the father or the mother, without preference to either, may maintain an *Page 403 action for the death or injury of a minor child, when such injury or death is caused by the wrongful act or neglect of another; * * *. Any such action may be maintained against the person causing the injury or death, or, if such person be employed by another person who is responsible for his conduct, also against such other person."
No pretense to originality is made by the writer in the interpretation and application of the sections quoted. They were reviewed, discussed, and applied by Judge Farrington in Perry, Administrator, v. Tonopah Mining Co. of Nevada (D.C.) 13 F. (2), 865.
The conclusion reached in Perry's Case, quoting the syllabus, is:
"Under Rev. Laws, Nevada, sections 5647, 5648, providing as to actions for wrongful death in general that `every such action shall be brought by and in the name of the personal representative * * * of such deceased person,' the proceeds to be distributed as specified, and section 4996, providing that `a father or, in case of his death or desertion of his family, a mother, may maintain an action for the death or injury of a minor child,' the remedy of a father for death of his minor child was in his own right and exclusive, and he could not maintain an action for the death as administrator."
Notwithstanding this conclusion, the court, in the course of the opinion, says:
"Our practice act confers a right of action on the parent for the death of a minor child; upon the guardian for the death of his ward, if of lawful age; upon the heirs or personal representatives for the death of a person not a minor. These provisions, however, do not cover the whole field of injuries which may result from wrongfully caused death. For instance, a boy of 20 years may at the same time be maintaining a wife, supporting his parents, and assisting his brothers and sisters. In such a case all would suffer pecuniary injury by reason of his death, but there could be no recovery *Page 404 by the widow, brothers, and sisters, except under sections 5647 and 5648, in an action by the personal representative. Again, the death might be caused by acts so willful, wanton, and reckless as to demand exemplary damages; such damages are provided for in section 5648 only, and cannot be recovered unless action is brought by a personal representative of the deceased under that section. See note to Bond v. United Railroads, Ann. Cas. 1912c, 67.
"There was, therefore, ample reason for retaining the act of 1871, as amended, in the Revised Laws of 1912. It has an independent scope, and serves a purpose which cannot be accomplished under sections 4996 and 4997. I am of the opinion that an action can be maintained under those sections for the wrongful death of a minor child. * * *"
The averments of the complaint in this case conform to the reasoning employed by Judge Farrington in arriving at the conclusion that in a proper case an action can be maintained under sections 5647 and 5648 for the wrongful death of a minor child. The complaint alleges facts sufficient, if sustained, to entitle plaintiff to recover both exemplary and compensatory damages. It alleges that, at the time of her wrongful death, the plaintiff's daughter was contributing to the care, support, and maintenance of herself and plaintiff, and that her death was proximately caused by the willful, wanton, reckless, and negligent act of the defendant. We are of the opinion that the action was properly brought under sections 5647 and 5648, and the court below erred in sustaining the defendant's demurrer for defect in the party plaintiff.
The judgment is reversed, with leave to the defendant to answer.