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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 0. Kenosha, 59 Wis. 123. See Worley o. Columbia, 88 Mo. 106. A city is not responsible for the negligence or misbehavior of its firemen, Jewetto. New Haven, 38 Conn. 369;S. C. 9 Am. Rep. 382; Greenwood o. Louisville, 13 Bush, 226; Torbush o. Norwich, 38 Conn. 225; 8. C. 9 Am. Rep. 395; Smith o. Rochester, 76 N. Y. 506; Welsh 0. Rutland, 56 Vt. 228; Robinson v. Evansville, 87 Ind. 334; Grube o. St. Paul, 34 Minn. 402; Burrill 0. Augusta, 78 Me. 118. Nor a town for the negligence of the town surveyor or his assistant. Barney o. Lowell, 98 Mass. 570; Walcott 0. Swampscott, 1 Allen, 101; Pratt o. Weymouth,17 N. E. Rep. 538 (Mass.); Judge r. Meriden, 38 Conn. 90. Nor for the neglects of persons connected with its sanitary service or hospitals. Ogg o. Lansing, 35 Iowa, 495; S. C. 14 Am. Rep. 499; Murtagh o. St. Louis; 44 Mo. 479; Brown o. Vinalhaven, 65 Me. 402; S. C. 20 Am. Rep. 709; White o. Marshfield, 48 Vt. 20; Summers 0. Board, &c., 103 Ind. 262; Bryant 0. St. Paul, 33 Minn. 289. Nor for the torts of its policemen. Calwell o. Boone, 51 Ia. 687; Attaway 0. Cartersville, 68 Geo. 740; Norristown o. Fitzpatrick, 94 Penn. St. 121; Robinson o. Greenville, 42 Ohio St. 625. In the last two cases there was a failure to stop firing of cannon. See, further, Sherbourn 0. Yuba County, 21 Cal. 113; Rudolphe v. New Orleans, 11 La. Ann. 242; Mitchell 0. Rockland, 41 Me. 363; and 45 Me. 496; Dargan 0. Mobile, 31 Ala. 469; Richmond o. Long, 17

Grat. 375; Stewart v. New Orleans, 9 La. Ann. 461; Pollock's Admr. 0. 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 o. Mason Co., 8 S. W. Rep. 264 (Ky.) citing Brab. ham 0. Supervisors, 54 Miss. 363; Kincaid o. Hardin Co., 53 Ia. 430; Dosdall o. Olmsted Co., 30 Minn. 96.

· Western College, &c., o. Cleveland, 12 Ohio, (N. 8.) 375. See in re Pennsylvania Hall, 5 Penn. St. 204; Darlington o. New York, 31 N. Y. 164; Folsom v. New Orleans, 28 La. Ann. 936; Underhill o. Manchester, 45 N. H. 214; Chadbourne 0. New Castle, 48 N. H. 196.

2 See Detroit o. Corey, 9 Mich. 165; Hannon 0. St. Louis, 62 Mo. 313; Broadwell 0. Kansas, 25 Mo. 213; Semple v. Vicksburg, 62 Miss. 63; Logansport v. Dick, 70 Ind. 65; Princeton v. Gieske, 93 Ind. 102; Kranz o. Baltimore, 64 Md. 491; Hardy 0. Brooklyn, 90 N. Y. 435; Ironton v. Kelly, 38 Ohio St. 50; Fort Worth 0. Crawford, 64 Tex. 202; Mootry 0. 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. Hunto. 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 negligence in the city's agent. Murphy o. Lowell, 128 Mass, 396. Contra, Joliet o Harwood,586 III. 110. Blumbo. Kun. sas, 84 Mo. 112 (distinguishing Russell 0. 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 con

struct 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 Ind. 75. So for negligently permit to the public. Compare Cunning- ting coal gas to escape into a sewer, ham o. St. Louis, 8 S. W. Rep. 787 causing explosion. Kibele e. Phila(Mo.).

delphia, 105 Peno. St. 41. NegliIf the benefit of the agent's act gently raising sewer grades at juno accrues solely to an individual the tion point. Defer 0. Detroit, 34 N. city is not liable for his negligence. W. Rep. 680 (Mich.); Rice o. Flint, Waller o. Dubuque, 69 Ia. 541. If Id. 719. So for neglect to adopt, after the duty is one to the public imposed notice, means to remedy continuing on the municipality by law, there is injury to an individual from a defect no liability in the absence of statute. in plan. Seifert o. Brooklyn, 101 N. So held after elaborate discussion Y. 136; Kiervan o. Jersey City, 13 where a child was injured by the un- Atl. Rep. 170 (N. J.). safe condition of a school building 2 Russell 0. Men of Devon, 2 T. R which the city was obliged to main- 667; Young o. Comr, of Roads, 2 X tain. Hill o. Boston, 122 Mass. 344. & McC. 537; Morey 0. Newfane, 8 Followed where the duty was as- Barb. 645; Mower o. Leicester, 9 Mass sumed, not imposed, under a general 247; Niles 0. Martin, 4 Mich. 557; statute. Wixon o. Newport, 13 R. I. Perry o. John, 79 Peno. St. 411; Siate 454. See also, Tindley v. Salem, 137 0. Cumberland, 7 R. I. 75; Huffmia Mass. 171; Benton o. Trustees Boston 0. San Joaquin Co., 21 Cal. 426; SutCity Hosp., 140 Mass. 13; Condict o. ton o. Board of Police, 41 Miss. 236; Jersey City, 46 N. J. L. 157; Wild o. Freeholders 0. Strader, 18 N. J. 108; Paterson, 47 N. J. L. 406.

Livermore o. Freeholders, 31 N, J. * Thus, a city is liable if one of its 507; Barbour Co. 0. Horn, 48 Ala drains or sewers is suffered to become 649; Detroit 0. Blackeby, 21 Mich. obstructed, whereby the lands of in- 84; Yeager 0. Tippecanoe, 81 Ind. 46; dividuals are flooded. Gilman v. La. Eikenberry o. Bazaar, 22 Kan. 550); conia, 55 N. H. 130; S. C. 20 Am. Frazer 0. Lewiston, 76 Me. 531; Rep. 175; Ashley 0. Port Huron, 35 Peters o. Fergus Falls, 35 Minn. 519; Mich. 296; S. C. 20 Am. Rep. 629; Swineford o. Franklin Co., 6 Mo, Taylor v. Austin, 32 Minn. 247; Van. App. 39; Abbett 0. Johnson Co., 16 X. derslice 0. Philadelphia, 103 Peon. E. Rep. 127. St. 102; Fort Wayne v. Coombs, 107 3 The statutes extend the obligacases are referred to which have been decided under these statutes.

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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 0. Dorchester, 6 Cush. 396; Sparbawk 0. Salem, 1 Allen, 30; Alger o. Lowell, 3 Allen, 402; Stevens o. Boxford, 10 Allen, 25; Burnham 0. Boston, 10 Allen, 290; Murdock o. Warwick, 4 Gray, 178; Palmer o. Andover, 2 Cush. 600; Hayden o. Attleborough, 7 Gray, 338; Titus o. Northbridge, 97 Mass, 258; Horton 0. Taunton, 97 Mass. 266, note; Cobb o. Standish, 14 Me. 198; Blaisdell v. Portland, 39 Me. 113; Stinson v. Gardiner, 42 Me. 248; Moulton 0. San. ford, 51 Me. 127; Hey v. Philadelphia, 81 Penn. St. 44; Winship v. Enfield, 42 N. H. 197; Houfe o. Fulton, 29 Wis. 296; Hunt o. Pownal, 9 Vt. 411; Weeks 0. Conn, &c., Turnpike Co., 20 Conn. 134. See Barnes o. Ward, 9 C. B. 392; Toms o. Whitby, 35 Up. Can. Q. B. 195; Hyatt o. Rondout, 44 Barb. 385; Palmer v. Andover, 2 Cush. 600; Winship o. Enfield, 42 N. H. 197. The measure of duty as to keeping bridges in repair is ordinary care. Stebbius v. Keene, 55 Mich. 552; Medina o. Perkins, 48 Mich. 67. Not bound to provide for passage of an extraordinary load. Wilson v. Granby, 47 Conn. 69; McCormick 0. Washington, 112 Penn. St. 185. If one makes use of the railings of a bridge to lean agalnst or rest upon, he does it at his own risk. Orcutt o. 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 o. Pitts. ton, 63 Me. 477, and cases cited. See Keyes 0. Marcellus, 50 Mich. 439; Fitzgerald v. Berlin, 64 Wis. 203,

This is varied somewhat by custom and the circumstances. Cobb 0. Standish, 14 Me. 198. municipality has assumed the duty of keeping up &

sidewalk with. in the corporate limits, but outside of street, it must repair. Mans. field o. Moore, 16 N. E. Rep. 246. That stumps and logs left in the road may constitute defects, see Ward o. Jefferson, 24 Wis. 342; Coggswell 0. Lexington, 4 Cush. 307; Snow 0. Adams, 1 Cush. 443. Compare Rogers o. Newport, 62 Me. 101; Springer 0. Bowdoinbam, 7 Me. 442; Bigelow 0. Weston, 3 Pick. 267; McArthur 0. Saginaw, 58 Mich. 357. So may & tent set up in the road which frightens horses. Ayer 0. Norwich, 39 Conn. 376; S. C. 12 Am, Rep. 396. Or a steam roller, suffered to remain in it over Sunday. Young 0. New Haven, 39 Conn. 435. See Keith o. Easton, Allen, 552; Rushville 0. Adams, 107 Ind. 475; Bennett 0. Fifield, 13 R. I. 139; North Man. heim 0. Arnold, 13 Atl. Rep. 444 (Penn); Agnew o. Corunna, 55 Mich. 428; Maxwell Clarke Tp. 4 Ont. App. 460. Or a dangerous awning over a walk. Drake o. 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 o. Peckham, 8 R. I. 319. Nor is it liable as for a defect in the highway for the fall upon a traveler of an insuffi. ciently guyed derrick in use in repairing a road. Pratt o. Weymouth, 17 N. E. Rep. 538 (Mass.). Nor for injury occasioned by a ditch dug by a citi. zen under municipal authority to lay pipe in a street. Susquehanna Depot v. Simmons, 112 Penn. St. 384. Nor for an injury occasioned by the


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jubilating of a mob in the street. trary doctrine is maintained. Young Campbell's Admr. 6. Montgomery, 0. New Haven, 39 Conn. 435; Ayer 6. 63 Ala. 527. Nor for an injury Norwich, 39 Conn. 376; S. C. 12 Am. suffered by unmanageable and un- Rep. 396; Morse 0. Richmond, 41 ruly horses, where the road is in such Vt. 435, where the Massachusetts condition that horses under control cases are reviewed. See also Agnew would have been driven with safety. 0. Corunda, 55 Mich, 428. Jackson o. Belleview, 30 Wis. 250. Whether one can recover where the Nor for an injury caused by the earth injury is the combined result of neg. giving way under the feet of the lect of duty on the part of the town horses, in consequence of a defect and of accident, has been, and still is, not discoverable. Prindle o. Fletcher, & disputed question. In Vermont, 39 Vt. 255. Nor for an injury caused New Hampshire, Missouri and Wisby a locomotive of a railway com- consin it is held he may. Hunt e. pany whose track illegally crossed Pownal, 9 Vt. 411; Kelsey e. Glover, the strect. Vinal 0. Dorchester, 7 15 Vt. 708; Allen o. Hancock, 16 Vt. Gray, 421. Nor for an injury caused 230; Hull o. Kansas City, 54 Mo. 598; by the traveler leaving the beaten Norris v. Litchfield, 35 N. H. 271; track in order to have the benefit of Clark 0. Barrington, 41 N. H. 44; snow. Kelly v. Fond du Lac, 31 Wis. Tucker o. Henniker, 41 N. H. 317; 179; Rice v. Montpelier, 19 Vt. 470. Winship 0. Enfield, 42 N. H. 197; See Rowell 0. Lowell, 7 Gray, 100. Dreher 0. Fitchburg, 22 Wis. 675; Compare Cassidy 0. Stockbridge, 21 Ward v. Milwaukee, &c.,R. R. Co., 29 Vt. 391. Nor for an injury occasioned Wis. 144; Houfe o. Fulton, 29 Wis. by the defect in a bridge of a railroad 296; 8. C. 9 Am. Rep. 568 ; Olsen e. crossing the street, and which the Chippewa Falls, 37 N. W. Rep. 575 railroad company is bound to repair. (Wis.). Compare Willey o. Belfast, Sawyer 0. Northfield, 7 Cush. 490. 61 Me. 669; and the same doctrine is See Flanders 0. Norwood, 141 Mass. held in Upper Canada. Sherwood e. 17. Compare Currier 0. Lowell, 16 Hamilton, 37 Up. Can. Q. B. 410. Pick. 170; Wellcome o. Leeds, 51 Me. See, also, Lower Macungie o. Merk. 313; Sides 0. Portsmouth, 59 N. H. hoffer, 71 Peon. St. 276 ; Crawfords 24; Tierney o. Troy, 41 Hun, 120. ville o. Smith, 79 Ind. 308; Balt., &c., Nor for one caused by running upon Co.,o. Bateman, 13 Atl. Rep. 54 (Md.); stones outside the traveled way and Lane o. Wheeler, 35 Hun, 606. The beyond the gutter. Howard o. North rule is the other way in Massachusetts Bridgewater, 16 Pick. 189. Objects and Maine. Davis o. Dudley, 4 Alwithin the limits of the highway, but len, 557; Titus 0. Northbridge, 97 outside the traveled way, are held in Mass. 258; Horton 0. Taunton, 97 Massachusetts not to be defects, Mass. 266; Fogg o. Nahant, 98 Masa merely from their tendency to fright- 578; Murdocko. Warwick, 4 Gray, en horses ; and the towns are held, 178; Wright o. Templeton, 132 Mass. therefore, not liable for injuries occa- 49: Moore o. Abbot, 32 Me. 46; Far sioned by teams becoming frightened rar 0. Greene, Id. 574; Coombs e. by them and running away. Keith Topsham, 38 Me. 204 ; Anderson e. v. Easton, 2 Allen, 552; Kingsbury v. Bath. 42 Me. 346; Moulton e. SanDedham, 13 Allen, 186; Horton v. ford, 51 Me. 127; Spaulding e. WinsTaunton, 97 Mass. 266 ; Cook o. low, 74 Me. 528; Aldrich o. Gorham, Charlestown, 98 Mass. 80 ; but in 77 Me. 287. But if a horse takes Connecticut and Vermont the con- fright from the carriage striking an

obstruction in a road, and becomes upmanageable and runs away, throwing out the driver and injuring him, the obstruction is to be deemed the proximate cause of the injury. Clark o. Lebanon, 63 Me. 393. But not if frightened at cows before striking the obstruction. Perkins o. Fayette, 68 Me. 152.

The following statement of cases in Vermont may be of interest: Hunt o. 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 bauk not sufficiently guarded; Kelsey o. Glover, 15 Vt. 709, a ruoaway team was turned upon the plaintiffs by the projection of a tree top into the highway; Allen o. 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 o. Barnet, 43 Vt. 192, plaintiff's gig was broken in passing a depression in the highway, the gig being defective; Hodge o. Bennington, 43 Vt. 450, the injury was the combined result of the defect in the way and of the breaking of a de. fective 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 insuffi. ciency 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 o. Verley, 35 III. 58. In Toms o. 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

ing upright in it. Board of Fulton Co. 0. Rickel, 106' Iod. 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 o. 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 o. Leeds, 51 Me. 313, citing State o. Gorham, 37 Me. 451; Currier 0. Lowell, 16 Pick. 170. See Sides 0. Portsmouth, 59 N. H. 24; Tierney o. Troy, 41 Hun, 120. Compare Saw. yer 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 ois 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 0. Northfield, 13 Pick. 94; Green o. Danby 12 Vt. 338; Springer o. Bowdoinham, 7 Me. 442; Hamden v. New Haven, &c., Co., 27 Conn. 158; Bragg o. Bangor, 51 Me. 532; Holt o. Penobscot, 56 Me. 15; Colley o. Westbrook, 57 Me. 181. See Chicago 0. McCarthy, 75 III. 602; Chicago 0. Langlass, 66 Ill. 361; Peru 0. French, 55 III. 317; Rowell 0. Wil. liams, 29 Iowa, 210. As to what is constructive notice, Galesburg 0. Higley, 61 III. 287; Springfield v. Doyle, 76 Ill. 202; Atlanta 0. Perdue, 53 Geo. 607; Alexander 0. 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 o. 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 v. Corry, 77 Penn, St. 109;

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