Rigony v. County of Schuylkill

The opinion of the court was delivered by Mr. Justice Geeen, Under the Act of March 6th 1860 § 2, P. L. 105, we think it [385] clear that the borough of Giberton and not the county of Schuylkill was subject to the duty of keeping in repair the bridge in question in this case. The Act of March 21st 1861, P. L. 163, restricted the generality of this duty, but in a very peculiar manner. The Act provides that the Act of 1860, § 2, shall not be construed so as to require the townships and boroughs of the county to keep in repair county bridges erected therein, “ when in tho opinion of the Auditors of the townships or borough in which such bridge is erected, the expense of repairing shall at any one time exceed the sum of twenty dollars and if, in the opinion of said Auditors, the repairing of such bridge shall exceed the said sum of twenty dollars they shall cause the same to be made known to the county commissioners who shall forthwith cause the same to be done at the expense of the county.” It will be perceived that the duty of the county commissioners to make repairs to tho bridges in question, arises under this Act, only where the township or borough Auditors are of opinion that the expense of repairing will, at any one time, exceed the sum of twenty dollars, and, when in addition to this, the Auditors shall have made that opinion known to the, commissioners. Both these pre-requisites must concur before the duty of repair comes into existence. Whether this legislation is reasonable or unreasonable may perhaps be questionable, but is not material, since its validity and obligatory force do not depend upon that consideration. It is the written law and the courts as well as the people are bound by it. The commissioners are only required to act after they have been informed of the opinion of the Auditors. It is not alleged, in the present case that any such information was ever communicated to the county commissioners, but the contrary is directly proved and not disputed. Now liability for non-repair is legally consequent only upon a neglected duty to repair. We said in Rapho v. Moore, 18 P. F. S. on p. 406: “ Without a duty of repair no liability rests on the municipality. As a general proposition, but by no means universal, bridges are treated as portions of the highways which cross them, and are to be maintained by the same persons to whom the duty of repairing the highways is committed: Shear. & Fed. on Negligence § 248. In this state the duty is statutory, and therefore we must look to the statute for its nature and extent.” The learned court below left to tho jury the question whether the injury of the plaintiffs was caused by defects in the original structure of the bridge, or from the failure to keep it in repair, directing that in the former event the county would be liable, in the latter not. It seems to us this was as much as the plaintiff could ask, under the law, and as the jnry has found for the defendant, we are bound to infer that the evi [386] dence satisfied them that the accident, which resulted in Whalen’s death, resulted from deficient repairs and not from defects in the original structure. There was abundant testimony in the case to justify such a verdict. Complaint is made of the language used by the court in stating tire terms of the liability of the county for defects in the original structure. We do not think the charge is amenable to an allegation of error in the instructions on this subject. The judge said, “ If there was any defect in the original structure, if the bridge in question was not properly built of proper material and of sufficient strength, if the original structure was grossly and obviously defective in the work, and such defects could bo ascertained by the exercise of proper care and caution on the part of the county officials, and they failed to exercise such care and thus neglected to properly protect the traveling public, we think their failure to use reasonable care and caution in the discharge of this duty, would amount to negligence.” Of course it is not claimed that there was error in saying that the accumulated force of all the enumerated derelictions would constitute negligence. Hence in literal strictness and in an affirmative sense this part of the charge was correct in the conclusion drawn from the premises stated. But the complaint is that the court overstated the conditions upon which liability would arise. In other words, that the learned judge held that all the defects stated must concur, in order to make.out liability. This is not correct in fact. The one clause specially objected to is the following, “ if the original structure was grossly and obviously defective in the work.” It was not said that this and the other defects mentioned must be combined to impose liability. The other defects related to the manner or character of the structure itself, to the kind of material used and to its strength or weakness, while this was defect in the work. In the latter case if the defect was gross and obvious there would be neglect in not discovering it. It is true the several kinds of defects enumerated are not connected by the disjunctive conjunction, but it is also true they are not joined by the copulative. They-are rather expressed independently of each other. As we read the charge it means that if there were gross and obvious defects in the work there would he liability, and there would also bo liability if there was any defect in the original structure or if the bridge was not built of proper material having sufficient strength. The expression “grossly and obviously defective in the work,” is precisely the same as was used by this court in the case of Mahanoy Township v. Scholly, 3 Norris on p. 110. “It seems to us the defects in the work, which are not gross and obvious, are within the category of latent defects for which there is no liability, as was said in Rapho v. Moore, supra, where tho original structure is being considered. Latent defects [387] resulting from the decay of the material used, after long use, come within a different category and the omission to search for and discover them is evidence of negligence, properly chargeable however to those whose duty it is to repair. We are of opinion that the learned judge carefully pointed out to the jury the proper distinctions affecting the liability of the county and the borough respectively, and that there was no error in his charge in the matter’s complained of. Judgment affirmed.