The city was held liable to the plaintiffs, not because it planned and constructed an inadequate sewer, but because, after planning and constructing an adequate sewer, it left obstructions in it, placed there for temporary purposes, which its agents carelessly omitted to remove, after those purposes had been accomplished.
For negligence in such matters a municipal corporation cannot escape responsibility on account of its public character. It is a person in law, capable of inflicting injuries, and liable to suit by him who suffers them, unless they flow from or are incident to the performance of a governmental duty. Municipal duties are governmental when they are imposed by the State for the benefit of the general public. They may sometimes have that character, also, when imposed in pursuance of a general policy, manifested by legislation affecting similar corporations, for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large. Jewett v. New Haven, 38 Conn. 368. Whether an instance of this nature is furnished by the provisions of the defendant's charter respecting the construction and maintenance of sewers, it is unnecessary to inquire. The injury to the plaintiffs was due to no fault of plan or construction, and to no omission to make proper repairs. It was of the same nature as one that might be suffered by the occupant of a new *Page 354 house who strikes his foot in a dark passage against an axe or stumbles over a heap of shavings which the builder's workmen have carelessly left upon the floor. The failure to sweep out the shavings or pick up the tools is something distinct from the work of building the house. It could only occur after the building was finished. So, even if the charter duty of the defendant as to the construction or alteration of the sewer with which the plaintiffs' store was connected, was governmental, its duty, after that had been performed, to clean up, and remove any temporary appliances which, if left where they were, would render the sewer unserviceable or inadequate, was a new and ministerial one. It was a simple and definite duty arising under fixed conditions, and implied by law. State v. Staub, 61 Conn. 553, 568. No one else could perform it. The sewer was part of the defendant's property and under its exclusive control. Its functions in regard to its construction or reconstruction had been discharged: the occasion for an exercise of those as to its repair had not arrived; and if its agents had before been acting as agents of the law, they now acted, or neglected to act, as its proper servants, subject to the full application of the rule of respondent superior. Norwalk Gaslight Co. v.Norwalk, 63 Conn. 495, 530. "Municipal immunity does not reach beyond governmental duty." Weed v. Greenwich,45 Conn. 170, 183. Had the city authorities expressly directed the workmen employed upon the sewer not to remove the "center" or the sandbags, when to allow them to remain was to turn this piece of city property into a nuisance to those who had paid for the right to share in its use, and were dependent upon its efficiency for the enjoyment of the houses and stores which it was built to serve, an action could certainly have been maintained for any resulting injury.Mootry v. Danbury, 45 Conn. 550, 556; Hoyt v. Danbury, 69 id. 341, 351; Morgan v. Danbury, 67 id. 484, 496. It lies equally in the absence of such directions. The cause of action is the failure to remove the obstructions. Whether this was an intentional or an unintentional omission of duty is immaterial. *Page 355
Nor is it of any consequence that the city, in altering its sewerage system, was relying upon funds derived from bonds issued under an amendment to its charter (11 Special Laws, p. 429), which provided that the sums thus borrowed should be used for such alterations or for purchase of real estate for parks, "and for no other purposes whatever." It cannot avoid a judgment for a common-law liability by pleading that it has no money on hand out of which it can be paid.
That the storm which was the immediate occasion of the flooding of the plaintiffs' cellar was a severe one can constitute no defense. It was severe but not extraordinary. DiamondMatch Co. v. New Haven, 55 Conn. 510, 526.
There is no error.
In this opinion the other judges concurred.