by the legislature to elect a warden and trustees | charters for the acts of their officers when enof its insane asylum to perform an important gaged in the discharge of public duties, and to public duty in which it had no private interest, that extent exercising acts of sovereignty, is and from which it derived no special advantage. established by many cases. Ensign v. LivingThe warden and trustees, when so elected, ston County Supers. 25 Hun, 20; Alamango v. were in no legal sense the agents of the county Albany County Supers. 25 Hun, 551; Ham v. of Monroe, but were public officers engaged in New York, 70 N. Y. 459; Smith v. Rochester, the discharge of duties which involved the ex- 76 N. Y. 506; Benton v. Boston City Hospital, ercise of the police power, and in which the 140 Mass. 13. 54 Am. Rep. 436; Curran v. general public were interested. Boston, 151 Mass. 505, 8 L. R. A. 243.

While the county of Monroe, by its board of supervisors, was empowered to enact general rules and regulations for the government of the asylum, and to elect its warden and trustees, it had no power to interfere directly with the management of the institution unless the warden so elected was guilty of misconduct, when he could be removed by the board of supervisors.

The nonliability of counties and also of municipal and other corporations having special'

The learned counsel for the plaintiff, evidently appreciating the force of the general rule to which we have adverted, sought to show that the case at bar was, by reason of special facts, not within its operation.

It is insisted that the defendant, at the time of this accident, was not only caring for the pauper insane of Monroe county, but also for other patients through contracts made for that purpose.

There is no evidence that the county of

And where injury was caused in an attempt to cross a defective bridge with a threshing outfit and steam engine weighing 8,250 lbs. where the plaintiff laid 3×12 inch planks 16 feet long for the wheels of the engine and moved at a slow speed, it was a question for the jury whether the use of such bridge was contributory negligence, and whether such use was reasonable, proper, and probable in view of the extent, kind, and nature of the travel and business on that road. Yordy v. Marshall County, 80 Iowa, 405.

the road district was a part of the bridge was a | had knowledge of the same. Dale v. Webster question for the jury in an action for injuries County, 76 Iowa, 370. caused from the dangerous condition of the bridge and approach, and it was erroneous for the court to hold that, as a matter of law, the bridge and approach being more than 40 feet long are to be considered together as constituting a county bridge. Nims v. Boone County, 68 Towa, 642, 66 Iowa, 272. So, in Nims v. Boone County, 66 Iowa, 272, it was said that in Moreland v. Mitchell, 40 Iowa, 394, it was held that whether an approach to a bridge constitutes a part of the bridge, for negligence in the construction of which the county is liable, is a question of fact for the determination of the jury; and the court said it was held by the court that the jury in that case rightfully found the approach to be part of the bridge, but there are many differences between the facts of that case and this.

In Walker v. Decatur County, 67 Iowa, 307, it was held erroneous to exclude evidence offered by the county to show that there was another equally convenient and perfectly safe road by which the plaintiff might have reached his destination and escaped injury from an unsafe bridge. It was further held that an instruction that if he knew the

And in Roby v. Appanoose County, 63 Iowa, 113, it was held that an approach to a bridge may be a • part of the bridge, for negligence in the construc-bridge was dangerous and could have reached his tion and repair of which the county would be liable. In this case the evidence did not show who built the approach.

destination as readily by a different road, the use of this bridge constituted contributory negligence, was erroneous, in that the mere fact that it was

The plaintiff must show that he has exercised due unsafe would not of itself prevent a recovery, and care in order to recover.

A county was liable for injuries caused by a county bridge being out of repair, and the plaintiff was held not to be guilty of contributory negligence where he got out of his wagon and examined the bridge before crossing, although one end had settled about 2 feet but appeared to him to be strong, and there was no other place to cross. Kendall v. Lucas County, 26 Iowa, 395.

And an instruction that if the defect in a bridge was "observable to all" the defendant's officers would be presumed to have known of it did not show that plaintiff was guilty of contributory negligence in going upon the bridge. Homan v. Franklin County, 98 Iowa, 692. See former trial, 90 Iowa, 185.

And it was held that the plaintiff was not guilty of contributory negligence in driving on a bridge when he bad no knowledge of any defect therein, although the accident happened by reason of decay and rottenness of its timbers. Huff v. Poweshiek County, 60 Iowa, 529.

that whether plaintiff exercised reasonable discretion in attempting to pass over was a question for the jury.

It was said that a county was liable for an injury to a person caused by a defective county bridge; but that this doctrine would not be carried any further and apply to anything else, as it was recognized as contrary to other decisions. Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236. The court attempted to make a distinction between bridges and court-houses in respect to liability for defects on the ground that the county had an option as to building bridges but none as to court-houses.

Maryland.

In Maryland counties are held liable for injuries to travelers from the defective condition of the county bridges.

Where a party injured was negligent, but his negligence only remotely contributed to produce the accident caused by a small bridge being out of But a county was not liable for injuries caused by repair, he would be entitled to recover providing want of a railing on a bridge where the same had the road was in disrepair through defendant's negexisted for two years, which was known to the de-ligence, and if the consequences of plaintiff's negceased, who, in walking on the bridge at night car-ligence would have been thereby avoided. Kenrying a lantern and reading a letter, stumbled and nedy v. Cecil County Comrs. 69 Md. 65. fell and was killed, as his contributory negligence would bar a recovery, although such accident may have been caused by a large spike projecting from the floor, but there was no evidence that the county

And under Md. Code, art. 28, § 1, declaring county commissioners to be a corporation, and to have power to appoint supervisors, and to have charge and control over county roads and bridges, and to

There can be no doubt that the committee of a lunatic, or anyone legally liable to support him, should, in the first instance, be required to pay for his maintenance and the income derived in this manner is in no sense a source of profit to the county so that it would be deemed in law as conducting a private bus-firmed and under the stipulation of plaintiff iness.

Kate MARKEY, Admrx., etc., of Hugh Markey, Deceased, Appt.,

v.

QUEENS COUNTY, Impleaded, etc., Respt. (154 N. Y. 675.)

1. No new liability for torts is imposed upon a county by a statute making it a municipal corporation for exercising the powers and discharging the duties of local government and the administration of public affairs, and providing that actions for damages

for any injury to any property or rights for which

it is liable shall be in the name of the county. 2. A county is not liable for the negligent exercise of the duty of maintaining bridges, imposed on it by the state, since it derives no special advantage from it in its corporate capacity.

(Bartlett and Martin, JJ., dissent.)

(January 11, 1898.)

APPEAL by plaintiff from a judgment of

the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Special Term for Queens County in favor of defendant in an action brought to recover damages for personal injuries resulting in death alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion.

dence or of direct proof of negligence in the acceptance by the county, it would be presumed that upon the erection of the bridge it was properly examined. It was error to submit to the jury the question "Did the bridge fall by reason of a defect in the original construction?" Childs v. Crawford County, 176 Pa. 139.

Mr. Charles J. Patterson, for appellant: Each county is now a municipal corporation.

County Law, Laws 1892, chap. 686, § 2; General Corporation Law, Laws 1892, chap. 687, 2; General Municipal Law, Laws 1892, chap. 685, § 1.

By the county law it is clearly contemplated that an action may be maintained against a county for damages.

Laws 1892, chap. 686, § 3.

The county of Queens and the county of Kings were charged by law with the duty of reconstructing this bridge (Laws 1892, chap.

288).

People, Keene, v. Queens County Supers. 142 N. Y. 271.

In England it is settled that a municipal corporation or other public body will not be held liable to an injured person for a mere nonfeasance consisting of a neglect to repair a public highway, even though the duty to repair is imposed by law upon the corporation.

Cowley v. Newmarket Local Board, 1 Fed. Rep. 45; Thompson v. Brighton, 9 Fed. Rep. 111; Gibson v. Preston, L. R. 5 Q. B. 218; M'Kinnon v. Penson, 8 Exch. 319; Young v. Davis, 7 Hurlst. & N. 760, Affirmed in 2 Hurlst. & C. 197.

It is also settled that for misfeasance whereby the safety of the highway is disturbed the corporation will be held liable.

| upon counties for failure to take an indemnity bond from contractors on public bridges where the guaranty has expired, but this liability does not attach to bridges which are not built by the county; and in the absence of this statute there is no implied liability on the part of counties.

So, a county was liable for injuries caused by a bridge falling in where the guaranty had expired, under Ala. Code, § 1203, providing that the county is liable for damages by a defect in a county bridge if a guaranty is not taken from the contractors, or the period has expired. This section was held to apply although it was not a toll bridge. Barber County v. Brunson, 36 Ala. 362.

And under Ala. Code, § 1203, the county was liable, although the bridge might have been built before the passage of the act, where the injury com

given to the jury assuming that the bond was void, or that a period of six years during which the bridge was to be kept in repair had expired, was incorrect, where the bond was not invalid, as the question of the expiration of the guaranty where the date was uncertain was one for the jury; and it was also erroneous as a charge upon the effect of the evidence. Barbour County v. Horn, 48 Ala.

And a county was not liable for injuries causing death occasioned by an unsafe bridge, under Pa. act March 6, 1860, § 2 (Pub. Laws, 105), making it the duty of the several townships and boroughs of S. county, in which any county bridge may be erected, to keep the same in repair at their own expense, and act March 21, 1861 (Pub. Laws, 163), providing that that section shall not be construed so as to require the several townships and boroughs in S. county in which any county bridge or bridges are now or may be erected to keep the same in re-plained of occurred after its passage; but a charge pair, when in the opinion of the auditors of the township or borough the expense of repairing shall at any one time exceed $20, and if in the opinion of said auditors the repairs shall exceed the sum of $20 they shall cause the same to be made known to the county commissioners, who shall cause the same to be done at the expense of the county, and no notification as to the condition of the bridge or cost of repairs was given by the auditors to the | 649. commissioners. It was held that it was a question for the jury whether the injury was caused by defects in the original structure of the bridge or from want of repair. In the former event the county would be liable, in the latter the township, as it was only the duty of the county commissioners to make repairs in such cause where the township or borough auditors were of the opinion that the expense exceeded $20, and when, in addition, such opinion was made known to the commissioners. It appeared that its original construction was safe, but the bridge had become out of repair. Rigony v. Schuylkill County, 103 Pa. 382.

Alabama.

2. Where statute imposes liability.

Under Rev. Code, § 1396, same as $ 1203, it must be alleged that no guaranty was taken from the builders of the bridge, or that such guaranty was taken, and that the time stipulated for its continuance had expired before the injury complained of was inflicted, in order to recover. Barbour County v. Horn, 48 Ala. 649.

A county was liable for damages for injuries from a defective bridge, under Ala. Code, § 1692, where the guaranty had expired, and the county could not be discharged by devolving the duty to repair on the overseer of the road, or by claiming that the repair amounted to a contract for the erection of another bridge. Greene County v. Eubanks, 80 Ala. 204.

But under Ala. Code, § 1203, providing that when

In Alabama there is a statute imposing liability a bridge has been erected under a contract with

ance as distinguished from nonfeasance. It is. like the case of one who lawfully digs a pit in the highway and puts a temporary bridge over it for public passage. Such a one is bound to use care in constructing and maintaining the temporary bridge.

Bathurst v. Macpherson, L. R. 4 App. Cas. | of the temporary bridge is a positive misfeas256; Smith v. West Derby Local Board, L. R. 3 C. P. Div. 423: White v. Hindley Local Bd. of Health, L. R. 10 Q. B. 219; Blackmore v. Mile End Old Town, L. R. 9 Q. B. Div. 452; Whitehouse v. Fellowes, 10 C. B. N. S. 765; Foreman v. Canterbury, L. R. 6 Q. B. 214; Tucker v. Axbridge Highway Board, 52 J. P. 87; Cox v. Paddington, 64 L. T. N. S. 566; Ruck v. Williams, 3 Hurlst. & N. 308; Brownlow v. Metropolitan Bd. of Works, 13 C. B. N. S. 768, Affirmed on appeal in 16 C. B. N. S. 546; Southampton & I. Floating Bridge & R. Co. v. Southampton Local Bd. of Health, 8 El. &

Bl. 801.

The same distinction prevails in Massachusetts, where it has been held that at common law neither cities, counties, nor towns were liable for mere nonfeasance to a person injured by a defective highway.

Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332 and cases cited.

But the liability for misfeasance has been repeatedly enforced.

Doherty v. Braintree, 148 Mass. 495; Waldron v. Haverhill, 143 Mass. 582; Doane v. Randolph, 132 Mass. 475; Hawks v. Charlemont, 107 Mass. 414.

Nolan v. King, 97 N. Y. 565, 49 Am. Rep. 561.

All public corporations are liable for creating nuisances.

Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157; Hawks v. Charlemont, 107 Mass. 414.

There is no sound distinction between the sanction of an obligation voluntarily assumed by a public body and that of an obligation which the legislature in the due exercise of its powers has imposed upon it.

1 Thomp. Neg. p. 619; Jones, Neg. of Mun. Corp. 59-69, pp. 113-129.

Where a duty to maintain or repair a highway or bridge is imposed by law upon a county, the county will be held liable at common law out of its corporate funds for an injury occasioned to an individual arising from the neglect to keep the bridge or highway in repair.

The construction and maintenance of the temporary structure are part and parcel of the general work of reconstruction, and negli gence in such construction and maintenance the county commissioners with a guaranty by | bond any person injured may sue on the bond, 730. and, if no guaranty has been taken or the period has expired, may recover damages of the county, an action against a county on the ground that a bond of insufficient amount was taken, was denied. Barbour County v. Horn, 41 Ala. 114.

Where the evidence affirmatively showed that the bridge was not erected by contract of the county commissioners as provided by § 456, Code 1886, providing that a bond of indemnity shall be required of a contractor building a bridge, and if none is taken the county shall be liable for injuries caused by defective condition, under which the plaintiff sought to fix the liability upon the county, no recovery could be had. Roberts v. Cleburne County (Ala.) 22 So. 545.

In Covington County v. Kinney, 45 Ala. 176, it was held that in cases not under Ala. Rev. Code, § 1396, providing substantially as 8 1203 for a liability for defective bridges on failure to take a bond from the contractor, counties were not required to keep public bridges in repair, and no liability attached for an injury from a defective bridge built by private subscription, although it was shown that the county had at one time paid for hauling lumber to repair said bridge, but the repairs were done by citizens gratuitously.

And under Ala. Rev. Code, § 1396, a county was not liable for injuries caused by a defective public bridge, where the bridge was not erected by a contract with the court of county commissioners, and was not such a bridge erected under the provisions of the Code as required the county to keep it in repair. Sims v. Butler County, 49 Ala. 110.

And in Barbour County v. Horn, 48 Ala. 649, it was said there was no liability against a county for damages from a defective bridge in the absence of a statute imposing a liability.

And a detached county in which was a defective bridge was not liable for injuries caused by such bridge where it was built by the county from which this county was detached, but there was no statute imposing a liability upon the detached county.

Mahanoy Twp. v. Scholly, 84 Pa. 136; Newlin Twp. v. Daris, 77 Pa. 319; Rapho & West Hempfield Twp. v. Moore, 68 Pa. 404, 8 Am. Rep. 202; Dean v. New Milford Twp. 5 Watts & S. 545; Anne Arundel County Comrs. v. Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. In Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730, it was said “that a county is not liable to an individual for an injury sustained, because of its failure to exercise a governmental power with which it is clothed, or because it is not exercised in the manner most conducive to the safety of the public, or because of the negligence or unskilfulness of its officers or agents, in the absence of a statute expressly declaring the liability."

Georgia.

In Georgia there is a statute imposing a liability where the bridge is a toll bridge built by the county or a bridge built by contract, if the county fails to take a seven-year guaranty bond, but the county is not liable after the expiration of seven years or for defects existing in other bridges.

So, a county was liable in damages for an injury resulting from a defective bridge where the bridge was built by a contract, and the county failed to take the bond, under Ga. Code, § 671, providing that when a public bridge is let out the contractor must in his bond make a condition to keep it in good repair for at least seven years, although the injury complained of occurred more than seven years after its completion. Mackey v. Murray and Whitfield Counties, 59 Ga. 832. (See Gwinnett County v. Dunn, 74 Ga. 358. This case is in effect overruled by Monroe County v. Flynt, 80 Ga. 489, although not referred to in that case.)

And where a county bad let out a bridge by contract, and had failed to take a bond of sufficient guaranty, and injury was caused thereby, under Ga. Code, § 691, providing that if no bond or sufficient guaranty has been taken by the ordinary, the county is also liable for damages, it was held that the plaintiff could sue either the county or the contractor. Arnold v. Henry County, 81 Ga. 730.

And where the time covered by the contractor's bond for keeping it in repair had expired, and the county did not make a new contract for that pur

Iowa, 58; Huston v. Iowa County, 43 Iowa, 456; Krause v. Davis County, 44 Iowa, 141; Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236; Huff v. Poweshiek County, 60 Iowa, 529; Cooper v. Mills County, 69 Iowa, 350; Hannon v. St. Louis County, 62 Mo. 313; Sims v. Butler County, 49 Ala. 110; Jackson v. Greene County Comrs. 76 N. C. 282; Threadgill v. Anson County Comrs. 99 N. C. 352; White v. Chowan County Comrs. 90 N. C. 437, 47 Am. Rep. 534.

Duckett, 20 Md. 468, 83 Am. Dec. 557; Calvert | Rep. 200; Chandler v. Fremont County, 42 County Comrs. v. Gibson, 36 Md. 229; Prince George's County Comrs. v. Burgess, 61 Md. 29, 48 Am. Rep. 88; Baltimore County Comrs. v. Baker, 44 Md. 1; Flynn v. Canton Co. 40 Md. 312, 17 Am. Rep. 603; Harford County Comrs. v. Wise, 71 Md. 43; House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; Morgan County Comrs. v. Pritchett, 85 Ind. 68; Pritchett v. Morgan County Comrs. 62 Ind. 210; Shelby County Comrs. v. Deprez, 87 Ind. 509; Madison County Comrs. v. Brown, 89 Ind. 48; Howard County Comrs. v. Legg, 93 Ind. 523, 47 Am. Rep. 390; Gibson County Comrs. v. Emmerson, 95 Ind. 579; Patton v. Montgomery County Comrs. 96 Ind. 131; Vaught v. Johnson County Comrs. 101 Ind. 123; Knox County Comrs. v. Montgomery, 109 Ind. 69.

The foregoing cases were recently overruled on the ground that by the true construction of the Indiana statute the county was not charged with the repair of bridges, and could not, except in special cases, appropriate county funds to repair them.

Jasper County Comrs. v. Allman, 142 Ind. 573; McCalla v. Multnomah County, 3 Or. 424; Eastman v. Clackamas County, 32 Fed. Rep. | 24; Wilson v. Jefferson County, 13 Iowa, 181; Brown v. Jefferson County, 16 Iowa, 339; McCullom v. Black Hawk County, 21 Iowa, 409; Soper v. Henry County, 26 Iowa, 264; Collins v. Council Bluffs, 32 Iowa, 324, 7 Am. pose but undertook to keep the bridge in repair itself. Davis v. Horne, 64 Ga. 69.

And a county was liable for an injury caused by a public bridge being out of repair where such county had failed to take the contractor's bond, under Ga. Code, § 691, providing that if the county authorities fail to take the bond required by 8 671 of the Code then the county shall be liable in the place of the contractor, and such bridge was built prior to the passage of the act of 1888, and where the injury occurred by reason of a horse becoming frightened at a hole in the bridge and backing the buggy over into the stream below, there being no bannisters or railings. (There was no question made as to the cause being fright. In this case the bridge was built to connect two counties, and one county refused to co-operate, and the suit was against the county which built the bridge.) Cook v. De Kalb County, 95 Ga. 218.

In Hammond v. Richmond County, 72 Ga. 188, it was said that where the statute provides a liability for counties for failure to take a bond to keep a bridge in repair, a recovery can be had for injuries.

And where a county was liable for injuries caused by a defective bridge, the county commissioners could be compelled by mandamus to pay it. Dearing v. Shepherd, 78 Ga. 28.

In Moreland v. Troup County, 70 Ga. 714, it was held that the right to recover for injury from a defective bridge was not affected by the adoption of the Constitution of 1877, art. 7, § 6, 2, restricting the taxing power of a county, and a demurrer to the petition on the ground that the injuries occurred after the adoption of the Constitution was overruled.

But a county was not liable for injury caused by want of proper repairs to a public bridge, where there was no allegation that the bridge was erected by letting it out to the lowest bidder, and that no bond was taken from the contractor faithfully to perform his contract and to indemnify for all damages occasioned by the failure so to do and to keep the bridge in good repair for seven years,

In the New England states and in many others it has been held that there is no distinction in liability between the cases of cities, counties, and towns, and that all three classes of corporations are free from such liability at common law.

Farnum v. Concord, 2 N. H. 392; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Brady v. Lowell, 3 Cush. 121; Morgan v. Hallowell, 57 Me. 375; Jones v. New Haven, 34 Conn. 1; Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342; Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530; Pray v. Jersey City, 32 N. J. L. 394; Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450: Winbigler v. Los Angeles, 45 Cal. 36; Taylor v. Peckham, 8 R. I. 349, 5 Am. Rep. 578; Black v. Columbia, 19 S. C. 412, 45 Am. Rep. 785; Young v. Edgefield Dist. Road Comrs. 2 Nott and for such further time as may be embraced in the contract, under Ga. Code, § 691, providing that on failure to take such bond the county is liable. Collins v. Hudson, 54 Ga. 25.

And a recovery was denied where a party was injured by a defective bridge which was built under a contract awarded on May 12, 1888, and a bond was taken, as Ga. act December 29, 1888, did not apply to bridges which had been let out and built before the passage thereof. It was said that before the passage of the act of 1888 counties were not primarily liable for injuries received from defective bridges where they had taken bond as required by law from the contractor. Mappin v. Washington County, 92 Ga. 130.

And under Ga. Code, § 671, requiring, in case of county bridges built by the lowest bidder, that the contractor should give a bond for seven years, and a bond for three years was taken, the county was not liable where the accident occurred before the three years expired, as the contractor was primarily liable. It was said that if the accident had happened after the three years the county would probably have been liable, as in that event the county should be treated as having taken no bond at all under the Code, § 691. Mappin v. Washington County, 92 Ga. 130.

And where there was no contract to build the bridge, and it had been more than seven years since it had been built, and it was a public bridge, and was not under bond, a county was not liable for injuries caused from the same being out of repair. It was held that Ga. Code, December 29, 1888, on the subject of county bridges (Acts 1888, p. 39), was not applicable to any county bridge erected before the passage of the act, and under the prior laws the counties were not liable in a case of this kind. Bibb and Crawford Counties v. Dorsey, 90 Ga. 72; Grays v. Bibb County, 94 Ga. 698.

And a county was not liable for injuries caused by neglect of the proper authorities to repair a bridge where it was not a toll bridge or one built by contract, under Ga. Code, § 709, providing for suit against counties for neglect to keep bridges in