Eyler v. County Commissioners

Miller, J., delivered the opinion of the Court. The appellant brought this action against the County Commissioners of Allegany County, to recover damages for injuries sustained by reason of the defective condition of a bridge across the Chesapeake and Ohio Canal, over which he was riding on horseback. It is admitted that the road on which this bridge was situated was a public county road in Allegany County, leading from Cumberland to the ford in the Potomac river near Patterson’s creek, and was such before the canal was constructed. The Canal Company in constructing their canal cut through and severed this road about the year 1846, and afterwards erected a bridge over the canal at the place of severance, and this was the only means of crossing the canal for a distance of eight or nine miles on either side. This bridge was burned down sometime during the late civil war, and the bridge standing at the time of the accident was shortly afterwards built by the Canal Company in the place of the one destroyed. The County Commissioners insist they are not responsible in this action because the Canal Company was by law hound to erect, maintain and keep this bridge in repair, and the learned Judges of the Circuit Court sustained this defence. Prom the nature of the work itself, and the general powers given to construct the canal for several hundred miles along the left hank of the Potomac river, it is clear the Canal Company were authorized to cross and sever all existing public highways leading to the river throughout the route prescribed by its charter. But in thus cutting — 269 — its canal across public highways, the company had no power utterly to destroy them, but was bound to unite for the public accommodation, any highway so divided by a reasonably convenient thoroughfare over or under its canal. Leopard vs. Canal Co., 1 Gill, 230. In the present instance the company did this by erecting a bridge over the canal, and thereby united the severed highway for the public use and public accommodation. Although there is no express provision in the charter, requiring the company to maintain and keep such bridges in repair, yet it is well settled, that where a new way or road is made across another already in existence and use, the crossing must not only be made with as little injury as possible to the old road, but whatever structures are necessary, for such crossing must be erected and maintained at the expense of the party under whose authority and direction they are made. This upon review of the authorities was recently decided by this Court in the case of the Northern Central Railway Co. vs. Mayor, &c. of Balto., 46 Md., 425, to he a principle or rule of the common law. It is therefore certain, that the duty of maintaining and keeping this bridge in repair is devolved upon the Canal Company. But does this fact relieve the County Commissioners from responsibility to a private individual, who, as one of the public, is entitled to travel the highway and cross the bridge, for injuries he may sustain, by reason of its being out of repair through the default or neglect of the Canal Company? That is the question which this case presents, and it leads us to inquire, first, whether the law imposes upon these Commissioners any duty or obligation towards the public with respect to this bridge. By the Code, Art. 28, the County Commissioners of each county in the State are created a corporation with power to sue and he sued, and among other duties imposed on them it is declared “ they shall have charge of and control over the county roads and bridges. ’ ’ They are also re — 270 — quired to levy all needful taxes on the assessable property of the county liable to taxation, and to pay and discharge all claims on or against the county, which have been expressly or impliedly authorized by law, and they are specially empowered to “ build ,and repair bridges, and levy upon the property of the county,therefor.” These powers are conferred by statute upon these bodies corporate to be exercised for the public good, and it is well settled, that the exercise of them is not merely discretionary but imperative, and that in such laws the terms power and authority import duty and obligation. By the construction which this Court has in numerous instances placed upon these statutory provisions, which not only impose duties upon these corporate authorities, but provide them with the means and clothe them with the power to discharge such duties, their liability in an action like the present is as securely fixed, as if the statute had in express terms said, that they shall have charge of and control over all the public county roads and bridges, within the limits of their respective counties, and shall keep the same in good repair, so as to be safe and convenient for the passage of persons and property, and shall be liable in an action on the case to any person receiving injury in conseqxience of any obstruction or defect therein. Mayor vs. Marriott, 9 Md., 160; Mayor vs. Pendleton, 15 Md., 12; County Commissioners vs. Duckett, 20 Md., 468; County Commissioners vs. Gibson, 36 Md., 229; Flynn vs. Canton Company, 40 Md., 313; County Commissioners vs. Baker, 44 Md., 1. Such being the construction and effect of these laws, we are clearly of opinion that the bridge on which this accident happened, was a county bridge under the charge and control of the County Commissioners, and one which in discharge of their duty to the public they were bound to keep in repair, if the Canal Company neglected its duty in that respect. It is not a bridge erected by a corporation specially created for that purpose, with power to — 271 — charge toll for passing over it, nor by a turnpike company authorized to receive tolls for travel over its road, hut it is a bridge wholly within the limits of the county, and erected on one of the ordinary public county highways. The Canal Company was required to erect it, not for its own convenience, nor to facilitate traffic on the canal, but for the “-public accommodation,” and was bound to make it a “reasonably convenient thoroughfare” for public travel over an existing highway which the canal intersected. We have been referred to the Virginia Act of February 27th, 1829, by which the Canal Company was empowered, whenever its 'president and directors should deem it expedient, to substitute boats in lieu of bridges to accommodate travel across the canal, wherever a public road shall render a bridge or ferry necessary, and such road cannot be conveniently conducted under the canal. Assuming that this power was confirmed to the company in this State by the 2nd section of the Maryland Act of 1832, chap. 91, we do not see that it has any important bearing upon the question before us. It matters not whether a ferry-boat or a bridge should be provided in any given instance, for in either case the end to be attained was the uniting of the severed highway for the accommodation and continuance of public travel, and in this case the company did not deem it expedient to substitute a ferry-boat, but erected a bridge which as soon as erected was devoted to the use of the public, and became subject to the control of the County Commissioners. The appellees’ counsel has also referred to the proviso in the 7th section of the Act of 1794, ch. 52, to the effect that the duty of road supervisors to mend and repair bridges, shall not extend to cases “where persons are or may hereafter be obliged, either by law or contract to keep bridges in repair.” But this law has long since beeu superseded by other Acts of Assembly in which no such restriction is found, and this so far from sustaining the appellees’ defence, plainly indicates that the — 272 — Legislature'deemed the continuance of such a restriction upon the duties and obligations of County Commissioners, unwise and inexpedient, and that the public good required they should have charge of and see to it that such bridges, as well as all others on county roads used by the public, were kept in repair. Reference has likewise been made to Altvater’s Case, 31 Md., 462, where it was held the action for the injury there sued for could not be maintained against the Mayor and. City Council of Baltimore. But the non-liability of the city in that case was placed upon the distinct ground, that by legislation subsequent to the decision in Marriott’s Case, the police of the city had been organized as a distinct body of State officials deriving their existence from, and strictly within the jurisdiction of State authority, and not amenable to the city authorities for the faithful discharge of their duties. It was held the action would not lie, solely because the whole police force bad been placed in other hands and under other control, so that the city was stripped of the power, and deprived of the means to enforce its ordinance for the removal of the nuisance by which the injury complained of was inflicted. But there has been no such change of legislation affecting the duties and obligations of County Commissioners. Their duties remain the same, and they are provided with the same ample power and' means to discharge them now, as when all the cases to which we have referred were decided. The result then is that we have a case in which the obligation to maintain and repair this bridge is, by the common law, cast upon the Canal Company, but where also the same duty and obligation are imposed by statute upon the County Commissioners. In our opinion the obligation of the latter to the public is primary and unqualified. The fact that the Canal Company is bound to repair, does not absolve the County Commissioners from their primary duty to the public, nor is their liability — 273 — affected by the fact that the appellant could, if he had chosen, have brought his action against the Canal Company. These propositions, we think, have been in effect decided by this Court in Gibson’s Case, (36 Md., 229,) already cited. After the decision in Duckett’s Case, (20 Md., 468,) the Act of 1868, ch. 299, was passed, by the 8th section of which the County Commissioners were directed to require the several road supervisors to give bond conditioned for the faithful performance of their duties, “ which bond may be put in suit for the benefit of any person suffering by the neglect of the said supervisor in keeping the roads in his district in proper order,”and in Gibson’s Case, it was contended that because this law gave a right of action upon the bond, the right of action against the Commissioners was thereby taken away, and the party injured was compelled to seek his remedy upon the bond of the supervisor. But the Court held that this statute merely gave a cumulative remedy, and left it discretionary with the party suffering injury, either to sue on the bond or to bring his action against the Commissioners. Such are the conclusions to be drawn from our own Maryland decisions on this subject, and upon these the determination of the present case must of course depend. Decisions however to the same effect have been made in other Courts of high authority where similar questions have arisen. In the case of State vs. Gorham, 37 Maine, 451, there was an indictment against the town for neglect in keeping a bridge over a railroad in a fit state of repair. By one section of the Revised Statutes of that State, it was provided that all highways and bridges in any town, shall be opened and kept in repair, so that the same may be safe and convenient,for travel, and in default thereof the town shall he liable to indictment and fine. By another section, it was provided, that every railroad corporation, shall maintain and keep in repair all bridges and their abutments, which such corporation shall construct for the purpose of en — 274 — abling their road to pass over or under any turnpike road,canal, highway or other way. A railroad corhpany had' built its road across one of the highways in the town of Gorham, and over its road built a bridge where the highway formerly was, with abutments, and the indictment against the town was for neglect in keeping this bridge and its abutments in repair. It was there contended, as-it has been here, that the fact that the railroad company was required to maintain and keep this bridge in repair,' exonerated the town from its liability and duty, but the Court in a very carefully considered opinion sustained the prosecution, and suggested some very practical and sensible reasons for their judgment. “ The introduction,” (say the Court,) “of railroads, and the frequency with which they cross public ways, as well under bridges, as at grade, has greatly increased the hazards of ordinary travelling. It is important that the most certain, prompt and efficient means should be provided against these new and increasing causes of inconvenience to travellers. Towns have the general supervision of highways. By holding them primarily responsible, a very much more convenient and certain remedy is afforded the public than could be had against private individuals or corporations. Against towns the remedy is simple, speedy and certain ; against other corporations or individuals there would be uncertainty as to the existence of the liability, and in many instances still greater uncertainty as to the pecuniary responsibilities of the parties.” The Court then refer to the case of Sawyer vs. Northfield, 1 Cush., 490, where the town was exempted from liability under similar circumstances, but clearly show that that decision turned upon the clause in the Massachusetts statute, which required the highways and bridges to be kept in repair by the towns, “ when other sufficient provision is not made therefor,” which made the liability of towns in that State, qualified and not absolute. There was no such clause in — 275 — the Maine statute, nor is there any such provision in our statutes as construed by this Court, qualifying the duty and liability of County Commissioners, with respect to any particular county highways or bridges, or any-class of them. The same doctrine in cases much stronger in favor of the towns, was adopted by the Supreme Court of Vermont, in Willard vs. Newbury, 22 Verm., 458, and Batty vs. Town of Duxbury, 24 Verm., 155. In the latter case the opinion was delivered by Judge Eedíteld. The accident occasioning the injury sued for, happened on a byway made by a railroad company to connect the two points of a highway, a part of which the company had occupied in the construction of its road, and the Court say: “the consideration that this by-way was made by the railroad company, or that the railroad company were bound to have made it more safe before obstructing the former highway is nothing with which the traveller has any concern. He is not bound to inquire who makes the by-ways, or by what authority obstructions are put upon the highway. But towns, after having reasonable notice of the existence of obstructions in their highways, are bound to remove them or make safe by-ways to pass round them, or see to it that they are property made by others, in order to exonerate themselves from liability to those who have occasion to travel. There is in law no necessary privity between the traveller and any one but the towns, as to the sufficiency of the highways.” And the learned Judge also adds: “How far this rule is consistent with decided cases in other States it is needless now to inquire. We entertain no doubt upon that subject, and if we did, we should not feel at liberty to disregard the solemn determination of this Court upon the very point in so recent a case, ( Willard vs. Newbury,) upon such mature consideration, and so elaborately discussed at the bar, and where we entertain no doubt of the satisfactory character of the general principles of reason and policy upon which it is founded.” — 276 — Well may we adopt and apply these remarks to the previous decisions of this Court to which we have referred, most of which were ably argued and very carefully considered. More recent decisions of other Courts have also, affirmed the same general propositions. We refer to Watson vs. Tripp, 11 Rhode Island, 98, to City of Philadelphia vs. Weller, decided by the Supreme Court of Pennsylvania, and reported in 4 Brewster, 24, to City of Lowell vs. Proprietors of Locks and Canals, 104 Mass., 23, and to Proprietors of Locks and Canals vs. Lowell Horse Railroad Corporation, 109 Mass., 224. But while we thus maintain the liability of the Commissioners to the appellant in this action, the Canal Company is by no means discharged from its obligation to maintain and repair this bridge; nor are the Commissioners left without remedy against the Company. Upon the principles decided in many of the cases referred to, as also by the Supreme Court of the United States, in City of Chicago vs. Robbins, 2 Black, 418, and 4 Wallace, 651, they may have their remedy over against the Company for whatever damages may be recovered against them in this action. So if they should expend money in necessary repairs, they can recover it hack from the Company in an action on the case. We need not suggest what other proceedings may be initiated by them, or by others for them, or in their interest to compel the performance of this duty by the Company, further than to say, that should it persist in neglect to repair, and subject the Commissioners to continued trouble and vexation it would do so at the risk of losing its charter. It follows from what we have said that there was error in granting the appellees’ first prayer, as well as in rejecting the fourth and eighth instructions asked by the appellant. His fourth prayer on the question of liability accords with the views expressed in this opinion, and corresponds — 277 — with the instruction approved in Gibson’s Case, whilst his eighth prayer correctly states the measure of damages. We deem it unnecessary to consider any of the other prayers of the appellant, as it is obvious from the case as now presented, the two we have approved will give him upon another trial all the law he requires. It also follows from the views we have expressed, that the testimony offered by the appellees in the first exception was inadmissible for the purpose of affecting their liability in this action. (Decided 27th June, 1878.) Judgment reversed, and neto trial awarded.