If the servant of a turnpike corporation had, in reconstructing the company's way, so negligently operated a steam-roller as to inflict the injury complained of, the plaintiff's right of action would be unquestioned. While in respect of duties imposed by law, performed by governmental as distinguished from corporate agents, and for public as distinguished from municipal benefit, towns and cities are held to be subdivisions of the state and entitled to the same immunity from actions for negligence as the principal sovereignty (Will. Mun. Liab., ss. 3, 4, 5, 11; Eastman v. Meredith, 36 N.H. 284, 292; Wooster v. Plymouth,62 N.H. 193; Sargent v. Gilford, 66 N.H. 543; Doolittle v. Walpole,67 N.H. 554; Gross v. Portsmouth, 68 N.H. 266; Rhobidas v. Concord,70 N.H. 90, 114), it is equally well established that, for negligence in the prosecution of work voluntarily assumed, performed by their own agents, and for their own profit, towns and cities are liable like private corporations or individuals. Will. Mun. Liab, ss. 3, 4, 5, 11, 24, 25; 2 Dill. Mun. Corp., ss. 966, 981; Wood Mast. Ser., ss. 457, 469; Bus. Pers. Inj., ss. 56, 57, 58; Eastman v. Meredith, 36 N.H. 284, 295; Rowe v. Portsmouth, 56 N.H. 291, 293; Clark v. Manchester, 62 N.H. 577, 579; Rhobidas v. Concord, 70 N.H. 90, 111, 114, 115, 116; Woodcock v. Calais,66 Me. 234; Goddard v. Harpswell, 84 Me. 499; Waldron v. Haverhill,143 Mass. 582, 584; Collins v. Greenfield, 172 Mass. 78,81; Butman v. Newton, 179 Mass. 1; Hannon v. County, 62 Mo. 313, 317. I am unable to see why the facts of the present case do not bring it squarely within the letter and spirit of the proposition last stated.
1. Certainly the work of converting a section of Pleasant street in the city of Concord into a "boulevard," to please the fancy of an individual residing thereon, and in consideration of her *Page 373 agreement to bear the burden of the expense, was a "voluntary" as distinguished from an "imposed" undertaking, if those terms are to have their natural and ordinary meaning. The work was not done "under compulsion of statute." Collins v. Greenfield, 172 Mass. 78, 81. The city "could not have been compelled to enter on the work for whose performance it contracted." Hannon v. County, 62 Mo. 313, 317.
It is clear, also, that the agency through which the city was proceeding with the work, namely, the mayor and highway commissioner jointly, was special and corporate as distinguished from statutory and governmental. It was not the agency provided by statute. It existed solely by virtue of the contract between the city and Mrs. Eddy.
The point that the contract was irregularly authorized, if such is the fact, is immaterial, because it was certainly one within the power of the city to make (Kelley v. Kennard, 60 N.H. 1), and hence to ratify (1 Dill. Mun. Corp., ss. 139, 463; 2 Ib., s. 968; Elliott R. S. 357, 358, 359; Will. Mun. Liab., s. 14; 1 Am. Eng. Enc. Law 1182, 1183, 1184, 1185, 1195, 1196, 1213, and notes; Grant v. Beard, 50 N.H. 129, 132, 133; Carpenter v. Nashua, 58 N.H. 37; Thayer v. Boston, 19 Pick. 511; Cranshaw v. Roxbury, 7 Gray 374; Neff v. Wellesley, 148 Mass. 487; Dempsey v. Chambers, 154 Mass. 330; Norton v. New ford, 166 Mass. 48); and there was abundant evidence for the jury of such ratification. Thayer v. Boston, 19 Pick. 511, 516.
The suggestion that the work was actually done by the highway commissioner in the character of a statutory agent, and that the relation of the mayor to it was merely advisory, is contrary to what must be assumed to be the fact for the purposes of the present case, namely, that the mayor "superintended" and "directed" the work "jointly" with the commissioner. At least, there was evidence for the jury that the work in question was prosecuted out of the statutory course by a special agency representing the city. Collins v. Greenfield, 172 Mass. 78, 81.
2. But the theory upon which the opinion of the majority primarily rests is, that chapter 186, Laws 1891, creating the Concord highway district, confers upon the highway commissioner named therein exclusive charge of the construction and repair of highways, and that the city was powerless, however advisable necessary, to entrust the work in question to a special agency. The act in this respect merely declares that the highway "commissioner shall have charge," etc. There are no express terms exclusion.
I cannot assent to the proposition that, because the legislature has provided a highway district and commissioner for the city *Page 374 Concord in order to secure maintenance of the highways therein according to the statutory standard and for the benefit of the general public, the city cannot in its corporate character undertake special highway improvements, not inconsistent with the rights of the public at large, for its local advantage and profit, and through its own agents. 13 Harv. Law Rev. 441, 638; 14 Ib. 20, 116; 34 Am. Law Rev. 505; Gilman v. Laconia, 55 N.H. 130,131, 132.
Towns and cities do not exist as subdivisions of the state and for governmental purposes merely. "The primary and fundamental idea of a municipal corporation is an agency to regulate and administer the internal concerns of a defined locality, in matters peculiar to the places incorporated, or at all events not common to the state or people at large." 1 Dill. Mun. Corp., s. 21; Elliott R. S. 326; Will. Mun. Liab., s. 27. Municipalities have peculiar local interests in the highways within their borders. "For all purposes of construction and repair, towns stand in position [with respect to their highways] which differs in no substantial respect from that of an owner of the fee; their control of the premises is so far absolute and exclusive." Gilman v. Laconia, 55 N.H. 130, 131; Hooksett v. Amoskeag Co., 44 N.H. 105; Troy v. Railroad, 23 N.H. 83. The legislature has carefully safeguarded these local interests, and left to municipalities, with respect to them, the fullest latitude of action. "Towns may . . . vote such sums of money as they shall judge necessary . . . to lay out, build, and repair highways." P. S., c. 40, s. 4. The money raised and collected for highway purposes shall be expended by the surveyor of highways, "or agents appointed for the purpose by the selectmen." Laws 1899, c. 29, s. 3; P. S., c. 73, s. 6; G. S., c. 66, s. 22. "Towns may, by vote or by-law, authorize their selectmen to contract for keeping their highways and bridges, or any part thereof, in repair for term not exceeding five years." P. S., c. 73, s. 7; Gilman v. Laconia, 55 N.H. 130, 131. See, also, Thompson v. Fellows, 21 N.H. 425; Bradford v. Newport, 42 N.H. 338. These statutes and decisions show that in providing for surveyors, road agents, and highway commissioners, it has never been understood by the legislature or courts that such surveyors, agents, and commissioners were exclusive, so that towns could not appoint special agents and make special contracts for the improvement of the highways within their borders in furtherance of their local and corporate interests. By the statute law of Massachusetts it is provided that the money raised for the making and repairing of highways shall be expended by the road agents, etc. Mass. P. S, c. 52, s. 3. Yet it has been repeatedly held *Page 375 "that a town, although it has duly chosen surveyors or highways, may from time to time, or for special reasons or occasions, undertake to repair its ways and bridges in some other than the regular and statutory manner, and may select and employ men as its agents for this purpose." Pratt v. Weymouth, 147. Mass. 245; Hawks v. Charlemont, 107 Mass. 414; Sullivan v. Holyoke, 135 Mass. 273; Deane v. Randolph, 132 Mass. 475; Tindley v. Salem,137 Mass. 171, 173; Waldron v. Haverhill, 143 Mass. 582; Brookfield v. Reed, 152 Mass. 568; Collins v. Greenfield, 172 Mass. 78, 81; Butman v. Newton, 179 Mass. 1. See, also, Woodcock v. Calais, 66 Me. 234; Goddard v. Harpswell, 84 Me. 499. Accordingly, the city in the present instance might have appointed Mrs. Eddy its agent, or contracted with her, to make the improvements in question. Pratt v. Weymouth, supra; Brookfield v. Reed, supra; Royalton v. Turnpike Co., 11 Vt. 311, 322, 323. "Nor is there any reason in law or equity why a city should not be allowed to make a public officer its agent." Benjamin v. Wheeler, 15 Gray 486. The defendant city had the right, therefore, to make its mayor and the highway commissioner, singly or jointly, its agents for the purpose of the improvements in question, if it believed such course would better subserve its interests than to have improvements directed by the highway commissioner in his character as a public officer of the state at large. Woodcock v. Calais,66 Me. 234; Goddard v. Harpswell, 84 Me. 499; Deane v. Randolph,132 Mass. 475; Pratt v. Weymouth, 147 Mass. 245, 254; Collins v. Greenfield,172 Mass. 78, 81; Butman v. Newton, 179 Mass. 1. The view that the authority of the highway commissioner is exclusive, and that the city of Concord is powerless to undertake to make such improvements as those in question except with his consent and under his control and direction, however desirable that it should be otherwise, is so unsound in principle, and might be so embarrassing and even disastrous in practice, that the legislature should not be presumed to have intended to confer such exclusive power, especially in view of the statutory provisions already referred to clearly indicating a general legislative policy to the contrary.
3. Finally, it appears in express terms that the city undertook the work "for its own profit." It thus appearing that the improvement in question was voluntarily undertaken by the city, out of the statutory course, by its own agents, and "for its own profit," I cannot perceive why the authorities cited at the outset, and which state "the law, not only of this jurisdiction, but of every jurisdiction where the common law prevails" (Rhobidas v. Concord, 70 N.H. 90, 116), do not apply with full force.
Independently of authority, upon principle, no satisfactory reason *Page 376 appears why a municipality voluntarily undertaking work like that in question, by its own agents, and "for its own profit," should stand any different with respect to liability for its negligence in the prosecution of such work than a private corporation or individual. It is easy enough to understand why municipalities, with respect to acts which they do under state compulsion, with state agents, and for the general good, should enjoy the same immunity as the principal sovereignty, but it is difficult to see why they should be exempt from liability for the consequences of their voluntary acts, by their own agents, and for their own profit.
Furthermore, the doctrine of governmental agency and sovereign immunity cannot, it would seem, be extended so as to exempt municipalities from liability for negligence under such circumstances as are presented in this case, consistently with the exceptions to that doctrine already firmly established in this jurisdiction.
(1.) It is the law of New Hampshire that a municipality is liable for the negligence of its agents in the voluntary construction or repair of sewers. Rowe v. Portsmouth, 56 N.H. 291, 293. I see no reason why they should not be equally liable for negligence in the course of equally voluntary work upon their highways, by their own agents, and for their own profit.
(2.) It is also the law of this state that municipalities are liable if, in the construction or repair of highways, they injure the proprietary rights of others by flooding their premises with water, notwithstanding the duty to construct and repair highways is "imposed," and, as it would seem, notwithstanding an agency for this purpose is provided by statute. Gilman v. Laconia, 55 N.H. 130; Parker v. Nashua, 59 N.H. 402; Rhobidas v. Concord, 70 N.H. 90, 112. I cannot see that it makes any difference in right whether the injury is proprietary or personal, by water or steam (Rhobidas v. Concord, 70 N.H. 90, 115), nor whether inflicted within the highway limit or just outside of it, so long as it results, not from a mere passive defect in the highway and through its use as such, but from negligence in the prosecution of work upon it, operating directly and independently of the highway.
(3.) It is also the settled law of New Hampshire that municipalities are liable for negligent acts of their agents (even in the discharge of imposed duties) which affect the private rights of others. Rhobidas v. Concord,70 N.H. 90, 110, 115. A traveler upon a highway, in the absence of statute, has no private right to a way free from defects. Sargent v. Gilford,66 N.H. 543. Therefore, at common law, he is without remedy for injury resulting from the mere passive condition of the way. But every man *Page 377 has a]private, common-law right not to be injured by the active negligence of another, whether that other be an individual, a private corporation, or a municipality. Will. Mun. Liab. ss. Eastman v. Meredith, 36 N.H. 384, 395; Mitchell v. Railroad, 68 N.H. 96, 117, 118; Rhobidas v. Concord,70 N.H. 90, 96, 117, 118. If, therefore, as claimed, one of the city's workmen so carelessly operated the steam-roller as to frighten the plaintiff's horses and cause them to run away, the plaintiff's private, common-law right not to be injured by the active negligence of another was thereby invaded. Will. Mum Liab., ss. 35, 35; Gordon v. Railroad,58 N.H. 396, 398; Mitchell v. Railroad, 68 N.H. 96, 117, 118. Whether he was so injured was a question upon which he was entitled to go to the jury.
McMahon v. Dubuque, 107 Ia. 63, 67, 68, 69, seems to be quite in point with the present case. There, sparks were negligently permitted to escape from the smoke-stack of the steam-roller owned and being operated by the city of Dubuque in rolling newly laid macadam on one of its streets on which the lot of the plaintiff abutted, whereby the plaintiff's house with its contents was destroyed. The city contended that it was not liable, because in operating the steam-roller it acted solely for the public and not for any private benefit. The court said, in substance, that there were two very satisfactory reasons why it must be held to answer in damages for its negligence: (1) It was engaged in doing the work from which the injury resulted with its own instrumentality; (3) the work was voluntarily assumed and carried on for compensation. "Mr. Dillon thus states the rule: `The liability of the corporation for its own negligence, or that its servants, is especially clear, and in fact indisputable, where it has received a consideration for the duties performed, or where, under permissive authority from the legislature, it voluntarily assumes and carries on a work or undertaking from which it receives tolls or derives a profit.' 2 Dill. Mun. Corp., s. 981. The city was authorized to make the improvement, but was not bound to undertake it with its own instrumentalities. Having done so, it incurred the same liability an individual would have done in performing like work. We have found no authorities precisely in point, but the principle is so just that none are required. It finds analogy in the cases holding municipalities owning and operating water and gas works, docks, piers, and other property to the same liability as individuals or private corporations with similar ownership and performing like duties. In operating the steam-roller the city was acting peculiarly for the benefit of the municipality, and in a way to enable it to exact compensation from property owners within its limits. Its liability similar *Page 378 to that of an individual if engaged in doing the same work is within the principle approved by the authorities generally."
The plaintiff should have been permitted to go to the jury, and the exception should be sustained.