Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
During his incarceration as a prisoner at the Hudson County Penitentiary, the appellant, Andrew W. Boyle, suffered certain injuries and instituted an action against the defendant, County of Hudson, to recover damages therefor. On defendant's motion at the conclusion of the plaintiff's case, the Law Division of the Hudson County Court dismissed the action, on the ground that the plaintiff had failed "to show willful, malicious negligence on the part of the defendant."
For the purpose of our discussion and determination of this appeal, a concise summary of the facts will suffice. On July 10, 1948, plaintiff was assigned by the keeper to sprinkle the road in the compound. A horse named "King" was selected by the keeper to draw the water wagon and he attached the harness while Boyle held the horse. After Boyle had mounted the wagon, taken the reins and while the cart was being turned around, the horse bolted for the barn. Boyle attempted unsuccessfully to get the horse under control and, fearing that he would be crushed between the wagon and the barn, Boyle leaped from the wagon, thereby causing his alleged injuries. Boyle had previously driven the horse in question, testifying that on each occasion it required the assistance of several persons to hitch the horse to the cart; that it was known to be vicious and difficult to handle; that he had made known that fact to the authorities and suggested its exchange; that he had never driven the water cart before; that it was a very old piece of equipment, but he assumed it was in good condition. Three witnesses testified as to the so-called wild nature of the horse, its frequent "runs" while hitched to prison carts, and that the water cart was an old type.
"The rule is well settled that upon motions for dismissal, the equivalent of motions for nonsuit or directed verdict under the former practice, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor." Visaggi v. Frank's Bar and Grill, Inc. , 4 N.J. 93 (Sup. Ct. 1950), at p. 98.
The plaintiff contends that the evidence established a prima facie case of active wrongdoing on the part of the defendant, County of Hudson, and the court erred in dismissing his action. The defendant contends that the maintenance of the penitentiary was a governmental function for which it is not liable for negligence in the performance thereof; that it is not liable for injuries to a prisoner received from a domestic animal in the absence of a showing of its vicious temperament and knowledge of such temperament by its owner or keeper, and that R.S. 40:9-2 renders it immune from liability "for injury to the person from the use of any public grounds, buildings or structures."
Plaintiff concedes that the erection, regulation, and maintenance of a prison, workhouse, or other place of confinement of prisoners is the exercise of a purely governmental power. "The courts of this state have said in conclusive form that the neglect of a municipal corporation to perform or its negligence in the performance of a public duty imposed on it by law, is a public wrong to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect." Waters v. Newark , 56 N.J.L. 361 (Sup. Ct. 1894); affirmed 57 N.J.L. 456 (E. & A. 1894). "But it is also a rule of law of equal importance that the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrong-doing chargeable to
the corporation." Doran v. Asbury Park , 91 N.J.L. 651 (E. & A. 1918); Kehoe v. Rutherford , 74 N.J.L. 659 (E. & A. 1907). See Bengivenga v. Plainfield , 128 N.J.L. 418 (E. & A. 1942); Truhlar v. Borough of East Paterson , 4 N.J. 490 (1950). The generally accepted rule of a majority of the jurisdictions throughout the United States holds that: "* * * a municipality is not liable to a person arrested and imprisoned in a municipal jail or workhouse for injuries received by him while so confined, by reason of the improper construction or negligent maintenance of such place, or by reason of the wrongful acts or negligence of the officers, agents, or employees, who are charged with the proper care of such persons while they are so confined, as where, owing to such negligence, prisoners are injured by fellow prisoners." 63 C.J.S., Municipal Corporations , § 904, Injury to Prisoners, p. 310. "In erecting, maintaining and managing jails, workhouses, and police stations, according to the judicial decisions, the municipality is exercising a purely governmental function, and is not liable for injury inflicted by its officers and servants in the exercise of such function, unless expressly so provided by statute." 41 Am. Juris., Prisons and Prisoners, sec. 17, p. 896; cf. McQuillin, Municipal Corporations (3 d ed.), vol. 18, sec. 53.94, pp. 396, 397.
The plaintiff asserts that his right of action comes within that class of cases where a municipality may be held liable for damages suffered as a result of active wrongdoing on the part of the municipality, citing the cases of Truhlar v. Borough of East Paterson, supra; Kress v. City of Newark , 9 N.J. Super. 70 (App. Div. 1950); Milstrey v. City of Hackensack , 8 N.J. Super. 221 (App. Div. 1950); Allas v. Rumson , 115 N.J.L. 593 (E. & A. 1935); Hammond v. County of Monmouth , 117 N.J.L. 11 (Sup. Ct. 1936); and Fisher v. Nutley , 120 N.J.L. 290 (E. & A. 1938). The rule of law enunciated in the foregoing cases cited by the appellant is undisputed. However, as we see it, it is not applicable to the issue here under review. At the argument, counsel for both parties stated that they had been unable to find any analogous
New Jersey cases. Similarly, our research has failed to reveal any New Jersey decision that is parallel to the factual situation here. The following cases, although not factually analogous, are cited as indicative of the position taken by our courts in disposing of actions brought by prisoners against governing bodies, to wit: Tomlin v. Hildreth , 65 N.J.L. 438 (Sup. Ct. 1900); Watkins v. Freeholders of Atlantic , 73 N.J.L. 213 (Sup. Ct. 1906); and Miller v. Belmar , 5 N.J. Misc. 224 (Sup. Ct. 1927). In the Tomlin case (an action against the City of Cape May and others for damages allegedly caused by an assault and battery committed upon the plaintiff when he was arrested and falsely imprisoned), the defendant's demurrer to plaintiff's declaration was sustained. Mr. Justice Fort, speaking for the court stated:
"It is very doubtful whether a municipality can be held in any case for an assault or false imprisonment by its agent or servant without clear proof at least of an express authorization or direction of the act by its duly constituted authorities acting in solemn form to bind the corporation in the performance ...