Argued January 8, 1936. The common law rule is that torts cannot arise from the performance of governmental services. The legislature by section 619 of the Act of May 1, 1929, P. L. 905, made a statutory exception to this rule by providing that "every county, city, borough, incorporated town or township . . . employing any person, shall be jointly or severally liable with such person for any damages caused by the negligence of such person while operating a motor vehicle upon a highway in the course of their employment." By section 102 of the same act, a vehicle is defined as "every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting tractors, agricultural machinery, devices moved by human power or used exclusively upon stationary rails or tracks. . . ." *Page 490
In Devers v. Scranton, 308 Pa. 13, 161 A. 540, this court, in an opinion by Mr. Chief Justice FRAZER, held, that a motor-driven fire ladder truck was not a vehicle within the meaning of section 102 of the Act of 1929, saying: "We are clearly of opinion that a fire truck is not a device intended for the transportation of persons or property upon a public highway. As such, it is necessarily excluded from the terms of the act; we would however, reach the same result from other considerations. In construing a statute which changes or is in derogation of the common law, the letter of the act is to be strictly considered [citing cases]. Unless the Vehicle Code of 1929 expressly or by necessary implication has altered the former rule relating to liability of municipalities for the negligence of employees of the fire and police departments, we cannot so construe the act."
In Graff v. McKeesport, 316 Pa. 263, 175 A. 426, we held that a police car was a motor vehicle as defined in section 102 of the Act of 1929, and that therefore section 619 of that act, imposing liability upon the municipality, applied. We distinguished that case from Devers v. Scranton, supra, saying: A fire truck "rather belongs to the class to which belong self-propelled tractors or agricultural machinery, which are expressly excluded from these vehicles which section 102 of the Act of 1929 defines as motor vehicles. A fire truck is not inits primary function a 'device in, upon, or by which any person or property is or may be transported or drawn upon a public highway,' as the legislature obviously intended that phrase to be interpreted. It has a distinct function of its own to perform in its character of fire truck."
In the case before us a minor was injured in a collision between an automobile driven by him and a motor-driven sprinkler truck owned by the City of Philadelphia and operated by one of its employees. There was testimony from which the jury could reasonably find that the minor plaintiff's injuries were caused by the *Page 491 negligent operation of the truck by the city's employee and that the minor plaintiff was not guilty of contributory negligence. There was a verdict in favor of the minor plaintiff in the sum of $500 and in favor of his parents in the sum of $1,000. Defendant made a motion for judgment n. o. v. This was granted. The Superior Court affirmed the judgment. An appeal was allowed.
Appellants rely upon the case of Mooney v. Phila., 115 Pa. Super. 433, 175 A. 886, in which that court held that the plaintiff could recover damages in consequence of a collision between his car and a motor garbage truck negligently operated by an employee of the City of Philadelphia. In the opinion of President Judge TREXLER in that case, he distinguished it fromDevers v. Scranton, supra, by saying: "It [a fire truck] carries no property strictly speaking. Its equipment is essentially just as much a part of the device as the spark plugs and the motors. A garbage wagon, on the contrary, is employed in transportation, being loaded at various places and unloaded at another place. . . . We do not construe the Devers case to hold that all acts of a governmental character performed by the city through its employees using motor vehicles are exempted from the operation of section 102 of the Act of May 1, 1929."
The present case turns on whether or not it is held that a sprinkler truck is, like a motor garbage truck, "a device in, upon or by which any person or property is or may be transported or drawn upon a public highway," as that phrase was used by the legislature. A sprinkler truck carries water, as a garbage truck carries garbage. A sprinkler truck transports water from one place to another. It stops at the source of supply, takes on a load of water and sprinkles that water over the city streets. The legislature evidently intended to remove from the common law rule mentioned in the first sentence of this opinion, torts arising from the negligent operation of those municipal motor vehicles used in and designed for the transportation of any person or property. While *Page 492 the instant case is a close one, we hold that a sprinkler truck comes within the statutory exception referred to.
The judgments of the Superior Court and of the court of common pleas are reversed, and judgments are herein entered on the verdicts in favor of the plaintiffs.