Page images
PDF
EPUB

responsible for the destruction of property by a mob, unless expressly made so by statute, as in some States it has been.' But municipal corporations are responsible for due care in the execution of any work ordered by them,' and if the work is one for

Menasha, 48 Wis. 79. Otherwise if in obedience to orders an officer seizes goods upon a void special street assessment. Durkee v. Kenosha, 59 Wis. 123. See Worley v. Columbia, 88 Mo. 106. A city is not responsible for the negligence or misbehavior of its firemen, Jewett v. New Haven, 38 Conn. 368; S. C. 9 Am. Rep. 382; Greenwood

. Louisville, 13 Bush, 226; Torbush v. Norwich, 38 Conn. 225; S. C. 9 Am. Rep. 395; Smith v. Rochester, 76 N. Y. 506; Welsh . Rutland, 56 Vt. 228; Robinson v. Evansville, 87 Ind. 334; Grube v. St. Paul, 34 Minn. 402; Burrill. Augusta, 78 Me. 118. Nor a town for the negligence of the town surveyor or his assistant. Barney v. Lowell, 98 Mass. 570; Walcott v. Swampscott, 1 Allen, 101; Pratt v. Weymouth,17 N. E. Rep. 538 (Mass.); Judge t. Meriden, 38 Conn. 90. Nor for the neglects of persons connected with its sanitary service or hospitals. Ogg v. Lansing, 35 Iowa, 495; S. C. 14 Am. Rep. 499; Murtagh o. St. Louis; 44 Mo. 479; Brown v. Vinalhaven, 65 Me. 402; S. C. 20 Am. Rep. 709; White . Marshfield, 48 Vt. 20; Summers v. Board, &c., 103 Ind. 262; Bryant v. St. Paul, 33 Minn. 289. Nor for the torts of its policemen. Calwell v. Boone, 51 Ia. 687; Attaway v. Cartersville, 68 Geo. 740; Norristown v. Fitzpatrick, 94 Penn. St. 121; Robinson . Greenville, 42 Ohio St. In the last two cases there was a failure to stop firing of cannon. See, further, Sherbourn v. Yuba County, 21 Cal. 113; Rudolphe v. New Orleans, 11 La. Ann. 242; Mitchell v. Rockland, 41 Me. 363; and 45 Me. 496; Dargan v. Mobile, 31 Ala. 469; Richmond v. Long, 17

625.

Grat. 375; Stewart v. New Orleans, 9 La. Ann. 461; Pollock's Admr. v. Louisville, 13 Bush, 221. A county

is not liable for the acts of its officers in the course of a public improvement by which land is flooded by a stream. Downing v. Mason Co., 8 S. W. Rep. 264 (Ky.) citing Brabham . Supervisors, 54 Miss. 363; Kincaid v. Hardin Co., 53 Ia. 430; Dosdall. Olmsted Co., 30 Minn. 96.

'Western College, &c., v. Cleveland, 12 Ohio, (N. s.) 375. See in re Pennsylvania Hall, 5 Penn. St. 204; Darlington v. New York, 31 N. Y. 164; Folsom v. New Orleans, 28 La. Ann. 936; Underhill v. Manchester, 45 N. H. 214; Chadbourne v. New Castle, 48 N. H. 196.

2 See Detroit v. Corey, 9 Mich. 165; Hannon v. St. Louis, 62 Mo. 313; Broadwell v. Kansas, 25 Mo. 213; Semple v. Vicksburg, 62 Miss. 63; Logansport v. Dick, 70 Ind. 65; Princeton v. Gieske, 93 Ind. 102; Kranz v. Baltimore, 64 Md. 491; Hardy . Brooklyn, 90 N. Y. 435; Ironton v. Kelly, 38 Ohio St. 50; Fort Worth . Crawford, 64 Tex. 202; Mootry v. Danbury, 45 Conn. 550; Suffolk v. Parker, 79 Va. 660; Keating v. Cincinnati, 38 Ohio St. 141. There must be willful misconduct or culpable neglect. Hunt v. New York, 16 N. E. Rep. 320 (N. Y.). If in blasting in the performance of a public duty one is injured, there can be no recovery in the absence of negli gence in the city's agent. Murphy v. Lowell, 128 Mass. 396. Contra, Joliet v Harwood,586 Ill. 110. Blumb v. Kansas, 84 Mo. 112 (distinguishing Russell v. Columbia, 74 Mo. 480) decides that an individual injured cannot re

the special benefit of its own people, it must not negligently be allowed to get out of repair to the injury of individuals.'

[*622]

*Municipal corporations are generally required to construct and keep in repair the public ways within their limits. These, however, are for the use, not of their own citizens merely, but of all the people of the State, and any duty they owe to keep them in repair is a duty to the State, and not to individuals. It is well settled, therefore, that at the common law a municipal corporation is not liable to an individual for neglect to keep a highway in repair, whereby he suffers an injury in using it.' In some of the States, however, the liability is expressly imposed upon towns by statute,' and in the note

cover, on the ground that the duty is to the public. Compare Cunningham v. St. Louis, 8 S. W. Rep. 787 (Mo.).

If the benefit of the agent's act accrues solely to an individual the city is not liable for his negligence. Waller v. Dubuque, 69 Ia. 541. If the duty is one to the public imposed on the municipality by law, there is no liability in the absence of statute. So held after elaborate discussion where a child was injured by the unsafe condition of a school building which the city was obliged to maintain. Hill v. Boston, 122 Mass. 344. Followed where the duty was assumed, not imposed, under a general statute. Wixon v. Newport, 13 R. I. 454. See also, Tindley v. Salem, 137 Mass. 171; Benton v. Trustees Boston City Hosp., 140 Mass. 13; Condict v. Jersey City, 46 N. J. L. 157; Wild v. Paterson, 47 N. J. L. 406.

1 Thus, a city is liable if one of its drains or sewers is suffered to become obstructed, whereby the lands of individuals are flooded. Gilman v. Laconia, 55 N. H. 130; S. C. 20 Am. Rep. 175; Ashley v. Port Huron, 35 Mich. 296; S. C. 20 Am. Rep. 629; Taylor v. Austin, 32 Minn. 247; Vanderslice v. Philadelphia, 103 Penn. St. 102; Fort Wayne v. Coombs, 107

Ind. 75. So for negligently permitting coal gas to escape into a sewer, causing explosion. Kibele. Philadelphia, 105 Penn. St. 41. Negli gently raising sewer grades at junc tion point. Defer v. Detroit, 34 N. W. Rep. 680 (Mich.); Rice . Flint, Id. 719. So for neglect to adopt, after notice, means to remedy continuing injury to an individual from a defect in plan. Seifert v. Brooklyn, 101 N. Y. 136; Kieruan . Jersey City, 13 Atl. Rep. 170 (N. J.).

2 Russell v. Men of Devon, 2 T. R. 667; Young v. Comr. of Roads, 2 N. & McC. 537; Morey . Newfane, 8 Barb. 645; Mower v. Leicester, 9 Mass. 247; Niles . Martin, 4 Mich. 557; Perry v. John, 79 Penn. St. 411; State v. Cumberland, 7 R. I. 75; Huffman v. San Joaquin Co., 21 Cal. 426; Sutton v. Board of Police, 41 Miss. 236; Freeholders v. Strader, 18 N. J. 108; Livermore . Freeholders, 31 N. J. 507; Barbour Co. v. Horn, 48 Ala 649; Detroit v. Blackeby, 21 Mich. 84; Yeager v. Tippecanoe, 81 Ind. 46; Eikenberry v. Bazaar, 22 Kan. 556; Frazer v. Lewiston, 76 Me. 531; Peters v. Fergus Falls, 35 Minn. 549; Swineford v. Franklin Co., 6 Mo. App. 39; Abbett v. Johnson Co., 16 N. E. Rep. 127.

3 The statutes extend the obliga

cases are referred to which have been decided under these statutes.1

tion so far as to require the supplying of suitable fences, protections and guards at the sides, and the following are cases where towns were prosecuted for failure to perform this duty. Collins. Dorchester, 6 Cush. 396; Sparhawk v. Salem, 1 Allen, 30; Alger. Lowell, 3 Allen, 402; Stevens v. Boxford, 10 Allen, 25; Burnham v. Boston, 10 Allen, 290; Murdock v. Warwick, 4 Gray, 178; Palmer v. Andover, 2 Cush. 600; Hayden v. Attleborough, 7 Gray, 338; Titus v. Northbridge, 97 Mass. 258; Horton v. Taunton, 97 Mass. 266, note; Cobb . Standish, 14 Me. 198; Blaisdell v. Portland, 39 Me. 113; Stinson v. Gardiner, 42 Me. 248; Moulton v. Sanford, 51 Me. 127; Hey v. Philadelphia, 81 Penn. St. 44; Winship v. Enfield, 42 N. H. 197; Houfe v. Fulton, 29 Wis. 296; Hunt . Pownal, 9 Vt. 411; Weeks. Conn, &c., Turnpike Co., 20 Conn. 134. See Barnes v. Ward, 9 C. B. 392; Toms v. Whitby, 35 Up. Can. Q. B. 195; Hyatt v. Rondout, 44 Barb. 385; Palmer v. Andover, 2 Cush. 600; Winship v. Enfield, 42 N. H. 197. The measure of duty as to keeping bridges in repair is ordinary care. Stebbins v. Keene, 55 Mich. 552; Medina v. Perkins, 48 Mich. 67. Not bound to provide for passage of an extraordinary load. Wilson v. Granby, 47 Conn. 59; McCormick v. Washington, 112 Penn. St. 185. If one makes use of the railings of a bridge to lean against or rest upon, he does it at his own risk. Orcutt v. Kittery Point Bridge Co., 53 Me. 500. See Stickney v. Salem, 3 Allen, 374.

'The obligation to repair is in the main confined to that part of the road usually traveled. Philbrick v. Pittston, 63 Me. 477, and cases cited. See Keyes v. Marcellus, 50 Mich. 439; Fitzgerald v. Berlin, 64 Wis. 203,

This is varied somewhat by custom and the circumstances. Cobb v. Standish, 14 Me. 198. If a municipality has assumed the duty of keeping up a sidewalk within the corporate limits, but outside of street, it must repair. Mansfield v. Moore, 16 N. E. Rep. 246. That stumps and logs left in the road may constitute defects, see Ward v. Jefferson, 24 Wis. 342; Coggswell v. Lexington, 4 Cush. 307; Snow v. Adams, 1 Cush. 443. Compare Rogers v. Newport, 62 Me. 101; Springer v. Bowdoinham, 7 Me. 442; Bigelow v. Weston, 3 Pick. 267; McArthur v. Saginaw, 58 Mich. 357. So may a tent set up in the road which frightens horses. Ayer v. Norwich, 39 Conn. 376; S. C. 12 Am. Rep. 396. Or a steam roller, suffered to remain in it over Sunday. Young v. New Haven, 39 Conn. 435. See Keith v. Easton, 2 Allen, 552; Rushville . Adams, 107 Ind. 475; Bennett v. Fifield, 13 R. I. 139; North Manheim . Arnold, 13 Atl. Rep. 444 (Penn); Agnew v. Corunna, 55 Mich. 428; Maxwell v. Clarke Tp. 4 Ont. App. 460. Or a dangerous awning over a walk. Drake v. Lowell, 13 Met. 292.

But a town is not liable for an injury occasioned by the falling of a sign which has been fastened to an adjacent building. Taylor v. Peckham, 8 R. I. 349. Nor is it liable as for a defect in the highway for the fall upon a traveler of an insufficiently guyed derrick in use in repairing a road. Pratt v. Weymouth, 17 N. E. Rep. 538 (Mass.). Nor for injury occasioned by a ditch dug by a citizen under municipal authority to lay pipe in a street. Susquehanna Depot v. Simmons, 112 Penn. St. 384. Nor for an injury occasioned by the

jubilating of a mob in the street. Campbell's Admr. e. Montgomery, 53 Ala. 527. Nor for an injury suffered by unmanageable and unruly horses, where the road is in such condition that horses under control would have been driven with safety. Jackson. Belleview, 30 Wis. 250. Nor for an injury caused by the earth giving way under the feet of the horses, in consequence of a defect not discoverable. Prindle v. Fletcher, 39 Vt. 255. Nor for an injury caused by a locomotive of a railway company whose track illegally crossed the street. Vinal v. Dorchester, 7 Gray, 421. Nor for an injury caused by the traveler leaving the beaten track in order to have the benefit of snow. Kelly v. Fond du Lac, 31 Wis. 179; Rice v. Montpelier, 19 Vt. 470. See Rowell v. Lowell, 7 Gray, 100. Compare Cassidy v. Stockbridge, 21 Vt. 391. Nor for an injury occasioned by the defect in a bridge of a railroad crossing the street, and which the railroad company is bound to repair. Sawyer . Northfield, 7 Cush. 490. See Flanders v. Norwood, 141 Mass. 17. Compare Currier v. Lowell, 16 Pick. 170; Wellcome . Leeds, 51 Me. 313; Sides v. Portsmouth, 59 N. H. 24; Tierney . Troy, 41 Hun, 120. Nor for one caused by running upon stones outside the traveled way and beyond the gutter. Howard v. North Bridgewater, 16 Pick. 189. Objects within the limits of the highway, but outside the traveled way, are held in Massachusetts not to be defects, merely from their tendency to frighten horses; and the towns are held, therefore, not liable for injuries occasioned by teams becoming frightened by them and running away. Keith v. Easton, 2 Allen, 552; Kingsbury v. Dedham, 13 Allen, 186; Horton v. Taunton, 97 Mass. 266; Cook v. Charlestown, 98 Mass. 80; but in Connecticut and Vermont the con

trary doctrine is maintained. Young 1. New Haven, 39 Conn. 435; Ayers. Norwich, 39 Conn. 376; S. C. 12 Am. Rep. 396; Morse . Richmond, 41 Vt. 435, where the Massachusetts cases are reviewed. See also Agnew . Corunna, 55 Mich, 428.

Whether one can recover where the injury is the combined result of neg. lect of duty on the part of the town and of accident, has been, and still is, a disputed question. In Vermont, New Hampshire, Missouri and Wisconsin it is held he may. Hunt . Pownal, 9 Vt. 411; Kelsey v. Glover, 15 Vt. 708; Allen . Hancock, 16 Vt. 230; Hull v. Kansas City, 54 Mo. 598; Norris v. Litchfield, 35 N. H. 271; Clark . Barrington, 41 N. H. 44; Tucker v. Henniker, 41 N. H. 317; Winship. Enfield, 42 N. H. 197; Dreher v. Fitchburg, 22 Wis. 675; Ward v. Milwaukee, &c., R. R. Co., 29 Wis. 144; Houfe . Fulton, 29 Wis. 296; S. C..9 Am. Rep. 568; Olsen a Chippewa Falls, 37 N. W. Rep. 575 (Wis.). Compare Willey . Belfast, 61 Me. 569; and the same doctrine is held in Upper Canada. Sherwood . Hamilton, 37 Up. Can. Q. B. 410. See, also, Lower Macungie e. Merkhoffer, 71 Penn. St. 276; Crawfordsville. Smith, 79 Ind. 308; Balt., &c., Co.,v. Bateman, 13 Atl. Rep. 54 (Md.); Lane o. Wheeler, 35 Hun, 606. The rule is the other way in Massachusetts and Maine. Davis . Dudley, 4 Allen, 557; Titus v. Northbridge, 97 Mass. 258; Horton. Taunton, 97 Mass. 266; Fogg v. Nahant, 98 Mass. 578; Murdock v. Warwick, 4 Gray, 178; Wright . Templeton, 132 Mass. 49: Moore v. Abbot, 32 Me. 46; Farrar v. Greene, Id. 574; Coombs. Topsham, 38 Me. 204; Anderson . Bath. 42 Me. 346; Moulton . Sanford, 51 Me. 127; Spaulding. Winslow, 74 Me. 528; Aldrich ®. Gorham, 77 Me. 287. But if a horse takes fright from the carriage striking an

obstruction in a road, and becomes unmanageable and runs away, throwing out the driver and injuring him, the obstruction is to be deemed the proximate cause of the injury. Clark . Lebanon, 63 Me. 393. But not if frightened at cows before striking the obstruction. Perkins v. Fayette,

68 Me. 152.

The following statement of cases in Vermont may be of interest: Hunt v. Pownal, 9 Vt. 411, a nut fastening the tongue of the vehicle to the axle-tree gave way, and the vehicle was thrown over a bank not sufficiently guarded; Kelsey v. Glover, 15 Vt. 708, a runaway team was turned upon the plaintiffs by the projection of a tree top into the highway; Allen v. Hancock, 16 Vt. 230, a horse smooth shod was not able to hold back a load, and plaintiff's team was thrust over an unguarded bank; Fletcher v. Barnet, 43 Vt. 192, plaintiff's gig was broken in passing a depression in the highway, the gig being defective; Hodge v. Bennington, 43 Vt. 450, the injury was the combined result of the defect in the way and of the breaking of a defective axle. In all these cases the principle is applied that where the traveler on the highway, in the exercise of ordinary care and prudence, receives an injury, which is the combined result of accident and insufficiency of the highway, and the injury is attributable to such insufficiency co-operating with the accidental cause, the town is liable. This doctrine approved in Joliet v. Verley, 35 Ill. 58. In Toms v. Whitby, 35 U. C. Q. B. 195, the approach to a bridge was not protected, and the plaintiff's horse, being driven over the bridge, shied, and backed the carriage over the bank. The town was held liable. A county, liable for a defective bridge, is not liable for injury from the backing of a team before reaching a bridge from fright at a plank stand

Board of Fulton

ing upright in it. Co. v. Rickel, 106 Ind. 501. If the injury is caused by fright at a defect, the defect must be such as to frighten an animal of ordinary gentleness. Kennedy v. Com'rs of Cecil Co., 14 Atl. Rep. 524 (Md.)

If a highway at a railway crossing is defective, it is no defense that the defect was one the railroad company ought to have remedied. Wellcome v. Leeds, 51 Me. 313, citing State v. Gorham, 37 Me. 451; Currier v. Lowell, 16 Pick. 170. See Sides v. Portsmouth, 59 N. H. 24; Tierney v. Troy, 41 Hun, 120. Compare Sawyer o. Northfield, 7 Cush. 490.

The liability of the town always presupposes the existence of fault; and therefore, if the defect is caused suddenly, by vis major, or accident, or the wrongful act of an individual, the town is not liable until the proper authorities have notice of it, or until after such delay that notice must be presumed. Reed v. Northfield, 13 Pick. 94; Green . Danby 12 Vt. 338; Springer. Bowdoinham, 7 Me. 442; Hamden v. New Haven, &c., Co., 27 Conn. 158; Bragg o. Bangor, 51 Me. 532; Holt v. Penobscot, 56 Me. 15; Colley v. Westbrook, 57 Me. 181. See Chicago . McCarthy, 75 Ill. 602; Chicago . Langlass, 66 Ill. 361; Peru v. French, 55 Ill. 317; Rowell v. Williams, 29 Iowa, 210. As to what is constructive notice, Galesburg v. Higley, 61 Ill. 287; Springfield v. Doyle, 76 Ill. 202; Atlanta v. Perdue, 53 Geo. 607; Alexander v. Mt. Sterling, 71 Ill. 366. But it is no defense to an action for an injury that the town used ordinary care and. diligence in repairing, if notwithstanding the road continues defective. Horton v. Ipswich, 12 Cush. 488. And snow and ice may become defects, giving rise to a cause of action when allowed to continue an unreasonable time. McLaughlin . Corry, 77 Penn. St. 109;

« PreviousContinue »