City of Edmond v. Tyler

Opinion by RITTENHOUSE, C. This :s an action wherein J. G. Tyler sues the city of Edmond to recover damages claimed to have been sustained through the negligence of said city in the care of its streets and the *258 roads approaching thereto. The proof shows that while, the plaintiff was riding a mare upon a public highway, which highway approached the streets of the city of Edmond, the mare stepped into a hole in a bridge constructed on said highway, falling and injuring this plaintiff and the mare. The court instructed the jury that the public highway and. bridge where this injury occurred, were outside of the boundaries of the city of Edmond, and further instructed the jury that where the city assumes the care and control of a public highway and bridge located thereon, although, the same might not be within its boundaries, the city would be liable for failure to exercise reasonable care to-keep such highway and bridge in proper condition for-the use intended in its construction, and that if the jury found from the evidence that said bridge was in a dangerous condition at the time of the injury, and that the city authorities knew, or by the exercise of reasonable care could have known, of the condition in time to have repaired the same and failed to do so, and as a consequence thereof plaintiff was injured and his horse . damaged, while said' plaintiff was in the exercise of due care, then and in that event the jury should find for the plaintiff and assess his damages at such sum as would reasonably-compensate him for the damages sustained. The instructions, as quoted, exclude the theory that, the bridge on which plaintiff was injured was within the: boundaries of the municipality, specifically mentioning-the fact that such bridge was located outside of the bound-' aries of the city of Edmond. The general rule is that there is no municipal liability for injuries from defective-' bridges or highways located outside of the boundaries of the municipality. McQuillin on Municipal Corporations,. *259 vol. 4, secs. 2734, 2741, 2749; City of McCook v. Parsons, 77 Neb. 132, 108 N. W. 167; Board of Commissioners of Owen County v. Washington Township, 121 Ind. 379, 23 N. E. 257; Becker v. City of LaCrosse, 99 Wis. 414, 75 N. W. 84, 40 L. R. A. 829, 67 Am. St. Rep. 874; Mayor and Council of Montezuma v. Law, 1 Ga. App. 579, 57 S. E. 1025; Stealey v. Kansas City, 179 Mo. 400, 78 S. W. 599; City of Topeka v. Cook, 72 Kan. 595, 84 Pac. 376; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010. The highway on which the bridge was constructed was deeded to the county in 1898, and the bridge constructed either by the county or the township.- There was evidence, however, that the bridge was less than 20 feet long; and, if so, it would be the duty of the township to maintain the bridge. The evidence shows that the city had, for several years, assisted the highway commissioners in grading th's highway and keeping the bridge thereon in repair, this work being done under section 964, Comp. Laws of 1909 (section 433, Rev. Laws 1910), which provides that from the road taxes collected in an incorporated city funds may be expended under the direction of the city counc'l in the. improvement of the streets or bridges of such city or of the roads approaching thereto. It is contended by plaintiff that this section gave the city authority to repair the bridge in question, and. having assumed that authority, it was bound to exercise reasonable care in respect thereto, and that, owing to the conduct of the city in making the repairs, said city is estopped to plead that it was not liable for the alleged negligence, having, under said section, assumed the management, improvement, control, and repa'r of said highway and bridge. There is no evidence that the city had the supervision and control of the highway or *260 the bridge in question. Such supervision and control was, by the statutes then in force, conferred upon the highway-commissioners of Edmond township, and that supervision and control was exclusive. The authority given by sec-, tion 964, supra, allowing'the city council to improve arid repair roads approaching their streets and alleys, is a mere license, subject always to the supervision and control of the highway commissioners of said township, and the. exercise of the license under said section could not make, the city liable for the manner in which the repairs are. made or for a failure to keep the bridge in repair. Steuley v. Kansas City, supra; Horner v. City of Atchison, supra. The cause should therefore be reversed and remanded. By the Court: It is so ordered.