Hickey v. Taaffe, 105 N. Y. 26; Buckley v. Gutta Percha & Rubber Mfg. Co. 113 N. Y. 540; Ogley v. Miles, 139 N. Y. 458; Appel v. Buffalo, N. Y. & P. R. Co. 111 N. Y. 550; Crown v. Orr, 140 N. Y. 450; De Forest v. Jewett, 88 N. Y. 264; Cowhill v. Roberts, 71 Hun, 127; French v. Aulls, 72 Hun, 442.

The very accident suggests carelessness on plaintiff's part, and she is bound to, prove her freedom from negligence, which, we submit, she has failed to do.

Babcock v. Fitchburg R. Co. 140 N. Y. 308.

Bartlett, J., delivered the opinion of the

court:

The plaintiff appeals from an order, made shall cause all bridges therein to be kept in repair. Parke County Comrs. v. Wagner, 138 Ind. 609.

In Parke County Comrs. v. Wagner, 138 Ind. 609, it was said: "The cases in this state are in confusion upon this question, many apparently holding that the liability arises from the fact that the bridge forms a part of the highway, and not depending upon the size of the bridge or the character of the stream or body of water crossed by it. Sullivan County Comrs. v. Arnett, 116 Ind. 438; Hamilton County Comrs. v. State, Stephenson, 113 Ind. 179; Knox County Comrs. v. Montgomery, 109 Ind. 69; Vaught v. Johnson County Comrs. 101 Ind. 123; Allen County Comrs. v. Bacon, 96 Ind. 31; Gibson County Comrs. v. Emmerson, 95 Ind. 579; Howard County Comrs. v. Legg, 93 Ind. 523, 47 Am. Rep. 390; Madison County Comrs. v. Brown, 89 Ind. 48; Morgan County Comrs. v. Pritchett, 85 Ind. 68; House v. Montgomery County Comrs. 60 Ind. 580, 28 Ain. Rep. 657; Harris v. Vigo County Comrs. 121 Ind. 299; Owen County Comrs. v. Washington Twp. 121 Ind. 379, and probably other cases. In Howard County Comrs. v. Legg. 110 Ind. 479, and Boone County Comrs. v. Mutchler, 137 Ind. 140, it was expressly held that the size of the bridge, and the character of the stream or ditch crossed were unimportant if the bridge was a part of the public highway, and liability was extended to bridges crossing ditches for the drainage of wet lands. In Carroll County Comrs. v. Bailey, 122 Ind. 46; Clark County Comrs. v. Brod, 3 Ind. App. 585; Shelby County Comrs. v. Castetter, 7 Ind. App. 309; Shelby County Comrs. v. Blair, 8 Ind. App. 574,—it was held that Rev. Stat. 1881, § 2892 (Rev. Stat. 1894, § 3282), should be construed in connection with other provisions of the statute requiring counties to build and repair bridges, and when so construed the authority of the counties was to build bridges only over watercourses, and the duty of counties was only to repair such bridges as they were authorized to build. The latest decision by this court is that of Boone County Comrs. v. Mutchler, 137 Ind. 140, and if we found it necessary to reconcile the confict suggested, and to adhere to the holding in that case, it would be unnecessary to decide whether the definitions of a watercourse given by the trial court in this case were correct, since they could in no way have harmed the appellant, but would have required more from the appellee than recessary to establish his cause of action." And the court concludes "The channel should have a supply of living water, though it is not necessary that the supply should be sufficient at all times, or most of the time, to flow the entire length of the channel."

A county was liable for injuries caused by the neg. ligent construction of a bridge over a ditch, under Ind. Rev. Stat. 1881, § 2892, providing that the board

first instance, granting a new trial after verdict at the Monroe circuit in her favor.

The plaintiff, an employee of the Moproe County Insane Asylum, was severely injured while operating a machine known as a steam mangle, which was used in the laundry.

At the trial it was insisted on behalf of the defendant that the county of Monroe was not liable in any event; that assuming its liability, the plaintiff had failed to make out a cause of action.

As we are of opinion that the county of Monroe is not liable under the facts as disclosed in this record, it is unnecessary to determine whether the plaintiff was entitled to go to the jury.

The plaintiff was injured February 11, 1891. Before this action was commenced the county law of 1892 was in force, but it is unnecessary of commissioners of such county shall cause all bridges therein to be kept in repair, where plaintiff's horse was frightened by a hog in a ditch on a free gravel road, a public highway, and backed the buggy over the side of the bridge, there being no railing to protect the same. It was held that another allegation that the county negligently permitted the adjoining owner to allow his animals to run in the ditch, thereby frightening the horse, stated no cause of action; but this did not affect the cause of action as to the construction of the bridge, or relieve the county from liability. It was also held that it was not necessary to allege notice where the cause of action arose from faulty construction. It was further held that the fact that the horse was driven by plaintiff's daughter, a married woman who was a skilful driver, did not show contributory negligence. Boone County Comrs.v. Mutchler. 137 Ind. 140.

But in an action for injuries caused by the breaking down of a bridge a demurrer was properly overruled to an answer averring "that the bridge or culvert complained of was not a bridge or structure which spanned a watercourse with defined bed and banks; but was a small bridge or culvert made to carry the surface water from said road away from it after heavy rains," as under a general denial in the auswer these facts might be proved. Bonebrake v. Huntington County Comrs. 141 Ind. 62.

A county was not liable for damages resulting from a defective bridge described as one "spanning a ditch which made a deep break in said highway,” and "which was a natural outlet for surface water from adjoining lands, and for waters that flowed from under a railroad near by, being dry portions of the year only." Reinhart v. Martin County Comrs. 9 Ind. App. 572.

In Reinhart v. Martin County Comrs. 9 Ind. App. 572, the case of Boone County Comrs. v. Mutchler, 137 Ind. 140, was distinguished, as in that case the ditch was regarded as a public ditch, and it was constructed by the board of commissioners as a part of a free gravel road.

In an action to recover damages for injuries from an unsafe bridge, it must be alleged that the unsafe condition of the bridge was the cause of the injury. An allegation that the bridge was unsafe, and the plaintiff's horse was injured, was held not to show any connection between the two things. Harris v. Vigo County Comrs. 121 Ind. 299.

And a county was liable for negligence in allowing a slab bridge over a pond to remain out of repair, causing injury, and the fact that it was in this condition for six months was sufficient to im. ply notice. A recovery was not prevented by the fact that plaintiff knew that it was somewhat ous

Prior to the year 1863 the county of Monroe cared in part for its insane in a department of the county poorhouse. By chapter 82, Laws of 1863, it was enacted that the insane asylum of the county of Monroe should be a separate and distinct institution from that of the Monroe county poorhouse, and the board of supervisors were placed in control and authorized to elect a warden, who was to hold office for three years, and a board of three trustees for a like

term.

The warden was constituted the chief officer of the asylum, subject to the regulations established by the board of supervisors; all purchases for the asylum were to be made by the warden under the direction of the trustees; all contracts with the attendants and assistants of repair. Madison County Comrs. v. Brown, 89, Ind. 48.

And a county was liable for injuries caused from a defective bridge on a public highway which spanned a watercourse. La Porte County Comrs. v. Ellsworth, 9 Ind. App. 566.

In Parke County Comrs. v. Sappenfield, 10 Ind. App. 609, where a recovery was allowed for negligent failure to erect and maintain suitable railings upon a county bridge, it was held that the evidence was sufficient to authorize the jury to find that the bridge was constructed over a natural watercourse -a "branch," as one of the witnesses styled it.

And a verdict for damages for injuries from failure to erect barriers on a bridge was not set aside on conflicting evidence. Parke County Comrs. v. Sappenfield, 10 Ind. App. 609.

trustees; the warden was also required to make out and deliver to the trustees annually an inventory of all property belonging to the asylum; the warden was also authorized to make contracts for the support of insane persons of the county, and by the direction of the board of supervisors or the trustees to demand from the state lunatic asylum all persons who were chargeable to the county of Monroe or to any town or city in the county.

It was further provided that no insane person residing in the county of Monroe and likely to become a county charge should thereafter be admitted to the state lunatic asylum without the written consent of the trustees of the Monroe county asylum or the chairman of the board of supervisors.

By chapter 633, Laws of 1870, it was made the duty of the trustees to determine all quesand the amendment was not filed within two years from the time the cause of action occurred, as required by statute for bringing an action, and the action was brought within the proper time, the amendment was properly allowed, and a recovery could be had for damages within the amount claimed in the petition and amended petition.. Cooper v. Mills County, 69 Iowa, 350.

And evidence by an expert bridge builder as to the effect of decay, and the ordinary life of bridge timber, was held competent as tending to show notice to the county of defects, and it was further held that a county should provide a competent person to inspect the bridges if the board had not that skill. Morgan v. Fremont County, 92 Iowa, 644.

Ind. 46.

Iowa.

In Iowa counties are held liable for failure to exercise care in the construction or repair of county bridges and a notice to any one of the county agents or officers will render the county liable for injuries thus caused. This rule has been limited to bridges of such size as the county should take care of, and does not extend to small bridges.

And a county was liable for injuries caused by a defective bridge. In this case the court recognized that the question was one upon which there was conflict, but refused to change the rule of that state. It was held that the county was bound to exercise such care as reasonably prudent and careful men used in the conduct and management of their own affairs of like importance. Cooper v. Mills County, 69 Iowa, 350.

And in this case where the court instructed the jury, in substance, that if the bridge was properly built, though from a plan in the builder's head, such plan will be sufficient, and a juryman wrote on a paper pinned to that part of the instruction "not sufficient," such writing was held to be only an irregularity, and did not have the force of a special verdict, although perhaps some of the jury may have understood that as an interrogatory.

Where an action was brought for $20,000 damages for injuries caused by a defective bridge,and the petition was amended increasing the claim to $35,000,

A verdict for $1,000 was held not excessive for injuries caused by defective bridges, where plaintiff was lamed, his jaw injured, some teeth broken, and his injuries caused much suffering. Morgan v. Fremont County, 92 Iowa, 644.

A county was liable for negligence in the construction of a bridge, and was required to exercise reasonable skill and care in adopting a plan, and it could not negligently or carelessly adopt an unsafe and insufficient plan on account of its cheapness, and be allowed to escape all liability for damages resulting from the insufficiency of the plan. It was also held that the bridge may have been built so long and become so old that the defendant in the exercise of ordinary care and prudence ought to have known that it would in such timebecome rotten and unsafe; and, further that if the members of the county board did not possess the requisite skill to discharge the duty of inspection, then it was the duty of the board to appoint or provide someone possessing such skill, and to have all county bridges under their care examined as frequently as a man of ordinary prudence and care would deem necessary for the safety of the public. But it was further held that if the bridge had stood for a period greater than the average life of timber of which it was composed, and had been rotten and unsafe for some months, the county would not be liable unless some member of the hoard in the exercise of reasonable care should have known of such condition. Ferguson v. Davis County, 57 Iowa,

601.

In Huff v. Poweshiek County, 60 Iowa, 529, it was held that it was a question for the jury whether the county was negligent in allowing bridge timbers.

intestate, who was killed by an ambulance wagon which was driven by an employee of the commissioners of charities and corrections. It was held that when the city of New York, by legislative enactment, was required to elect or appoint an officer to perform a public duty laid not upon it, but upon the officer, in which it had no private interest, and from which it derived no special advantage, such officer is not a servant or agent of the municipality for whose acts it is liable, even though the officer had in charge and was negligently using corporate property.

Judge Folger said (p. 164, 20 Am. Rep. 470): "There are two kinds of duties which are imposed upon a municipal corporation. One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual: the other is of that kind which arises, or is implied, from the use of political rights under the general by a defective bridge, where such bridge is in a town which has been recently changed into a city of the second class, under Iowa Rev. Stat. 88 1078-1097, providing that cities of the second class shall be invested with the power to control its own bridges and charged with the duty of keeping them in repair. McCullom v. Black Hawk County, 21 Iowa, 410. But this case was remanded for a new trial with leave to amend, if possible, to show that at the time the accident happened there had been no regular annual election for the city officers as a city of the second class, as the county would then be liable.

And a county was not liable for a defective bridge where the same was a small bridge, 12 feet span, and a complete and safe bridge with railings could have been built for $75, and the defect in the bridge was the absence of railings, which could have been put on at a cost of $5, and the road district had employed men to erect the same, and there was an absence of evidence that the county ever had anything to do with the bridge. It was said that if it had been a large bridge the county would have been liable. Chandler v. Freemont County, 42 Iowa, 58.

And where it was not shown that the county had control over or constructed the bridge there was no liability; and the fact that it subsequently made an appropriation for repairing or reconstructing could not be shown. Titler v. Iowa County, 48 Iowa, 90.

So, where the bridge was small and one which it was the duty of the officers of the particular road district to keep in repair, the county was not liable, Taylor v. Davis County, 40 Iowa, 295.

A distinction was made between expensive bridges and small bridges, although in this case the county board of supervisors had sent a committee to examine the work including the bridge, and then established the road where the road had been changed. This bridge had not been erected by the county or by the county funds.

And a county was not liable for injuries caused by a defective culvert or bridge which was a part of an ordinary road or highway, as counties were not charged by law with the duty of keeping in repair the ordinary highways or roads, but this duty was committed to the several road districts whose officers acted independently and in the exercise of their duty were not under the control of the county authorities, and no right of action existed against the county in respect to defective roads, Soper v. Henry County, 26 Iowa, 269.

In that case it was said that under Iowa Rev. Stat. § 312, 18, § 710, authorizing county authorities to make and repair bridges and levy a bridge

law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public and is used for public purposes (Lloyd v. New York. 5 N. Y. 374, 55 Am. Dec. 347). But where the power is intrusted to it as one of the political divisions of the state, and is conferred, not for the immediate benefit of the munici pality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents. Eastman v. Meredith, 36 Ñ. H. 284, 72 Am. Dec. 302."

In the case at bar, it is true, we are not dealing with a municipal corporation, for in February, 1891, the county of Monroe was a political division of the state, and at most only a quasi corporation; but, nevertheless, the reasoning in the opinion just cited is applicable. By the act of 1863 the county of Monroe, through its board of supervisors, was required tax, counties were liable for injuries caused by the condition of such bridge requiring extraordinary expense to build and maintain, but were not liable for small bridges which it was the duty of the road-district officers to maintain.

So, a county was liable for negligence in the construction and maintenance of the approaches to its bridges the same as it would be for a bridge, and the fact that a part of the cost of the construction of the county bridge was contributed by others did not relieve the county from liability. Albee v. Floyd County, 46 Iowa, 177.

It was held that the question whether or not the approach was a part of the bridge was one of fact for the jury. It was also held that where the bridge was of such an extent that it required a large expenditure of money to construct it, it would be a county bridge, although the repairs could be made for a small amount, and the bridge had been built by others than the agents of the county. Moreland v. Mitchell County, 40 Iowa, 394.

And where a trestle work was made between a road and a bridge intended to be filled on both ends of the trestle work, but the fill was incomplete, and a man in driving along the road at night approached the trestle work when he was on the embankment and got out of the buggy to investigate and fell off because there was no railing, it was held that the jury were authorized to find that it was a continuation of the traveled highway, and when connected with the trestle work the whole formed an approach to the bridge. It was also held that if the embankment was intended to connect the trestle work, and one fill was made first, which when connected with the trestle work, made it dangerous to persons traveling along the highway, the county would be liable even if there was negligence on the part of the contractor, as it would be the duty of the county to see that suitable barriers were erected. It was further held that the jury were authorized to find that plaintiff was rightfully passing over both the earth and trestle work, although it had not been used before for public travel, as someone must be the first to pass over a newly constructed or repaired highway, and that whether he was guilty of contributory negligence or not was a question for the jury. Van Winter v. Henry County, 61 Iowa, 684.

The questions whether an approach to a bridge is a part of the same or forms a part of the highway, and also whether the accident occurred upon the approach, where there are no barriers on an approach of the height of 30 feet, should both be submitted to the jury at the same time. Newcomb v. Montgomery County, 79 Iowa, 487.

Whether an approach to a county bridge built by