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& M'C. 537; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Stilling v. Thorp, 54 Wis. 528, 41 Am. Rep. 60; Hiner v. Fond du Lac, 71 Wis. 74; Arkadelphia v. Windham, 49 Ark. 139.

Other courts, agreeing in the proposition that there is no distinction in liability between counties, cities, and towns, hold that they are all equally liable for negligence in the maintenance of public highways and bridges whereby an individual is injured.

Dean v. New Milford Twp. 5 Watts & S. 545; Rapho & West Hempfield Twps. v. Moore, 68 Pa. 404, 8 Am. Rep. 202; Mahanoy Twp. v. Scholly, 84 Pa. 136; Newlin Twp. v. Davis, 77 Pa. 317; Chandler v. Fremont County, 42 Iowa, 58; Wilson v. Jefferson County, 13 Iowa, 181; Anne Arundel County Comrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Jackson v. Greene County Comrs. 76 N. C. 282; House v. Mont gomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; McCalla v. Multnomah County, 3 Or. 424; Eastman v. Clackamas County, 32 Fed. Rep. 24; Hannon v. St. Louis County, 62 Mo. 313; Sims v. Butler County, 49 Ala. 110. Some classes of duties undoubtedly pertain strictly to the government, such as the furnishing of jails, court houses, and the distribution -of public charity.

and corporate character, such as the mainte-
nance of the New York and Brooklyn Bridge.
Walsh v. New York, 107 N. Y. 220.
Or such as the maintenance of public
docks.

Mersey Docks & Harbour Board v. Gibbs, 11
H. L. Cas. 686.
Or beacons.

Gilbert v. Trinity House, L. R. 17 Q. B.
Div. 795.

The cases in this state holding that towns could not be sued for negligence are put upon the ground that the town is not charged with the duty of repairing highways.

Morey v. Newfane, 8 Barb. 645. See also People, Loomis, v. Little Valley Town Auditors, 75 N. Y. 317.

The artificial reasoning which is used to discharge the county is exhibited in the opinion in Albrecht v. Queens County, 84 Hun, 399.

Mr. Townsend Scudder, for respondent: A county is a corporation of limited corporate capacity and liability, and is under no liability in respect of torts.

1 Dill. Mun. Corp. § 22, 23 et seq; Ensign v. Livingston County Supers. 25 Hun, 21; People, Downing, v. Stout, 23 Barb. 338; Hamilton County Comrs. v. Mighela, 7 Ohio St. 109; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. Alamango v. Albany County Supers. 25 361; Fitzgerald v. Quann, 109 N. Y. 441; Hun, 551. Northern Transp. Co. v. Chicago, 99 U. S. 635, Other classes of duties belong to the private | 25 L. ed. 336; People, Keene, v. Queens County repair when the bridge is a toll bridge built by the A county was not liable for damages caused by a county, or § 731, providing that if a bond is not | defective bridge where the plaintiff by the use of taken from the contractor the county shall be lia- proper care could have prevented the injury. ble for damages, did not apply. Scales v. Chatta- Macon County v. Chapman, 74 Ga. 107. hoochee County, 41 Ga. 225.

A county was not liable for injuries resulting from a defective bridge where it was not alleged that toll was charged, under Ga. Code, § 669, providing that the ordinary may establish a toll bridge for the benefit of the county; but when toll is charged the county is liable as individuals owing them. Arline v. Laurens County, 77 Ga. 249.

In Arline v. Laurens County, 77 Ga. 249, the cases of Gwinnett County v. Dunn, 74 Ga. 358, and Collins v. Hudson, 54 Ga. 25, were approved.

In Gwinnett County v. Dunn, 74 Ga. 358, it was held that an action did not lie against a county for damages caused by neglect of proper authorities to repair a bridge, where it was not shown that it was a toll bridge or such a one as was built by a contractor, and that there was a failure to take the proper bond of indemnity required by the Code. Following Scales v. Chattahoochee County, 41 Ga. 225, and Collins v. Hudson, 54 Ga. 25.

In Gwinnett County v. Dunn, 74 Ga. 358, it was said that the decisions in Mackey v. Murray and Whitfield Counties, 59 Ga. 832, and Davis v. Horne, 64 Ga. 69, seem to have been made without any reference to Collins v. Hudson, 54 Ga. 25.

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Kansas.

In Kansas it was formerly held that there was no implied liability against counties for failure to keep a bridge in proper condition, but now a statute provides that if the chairman of the board of county commissioners has five days' notice of such defects the county will be liable.

So, a county was not liable for injuries caused from a defective public bridge in the absence of any statute imposing a liability. The court said there is a distinction between the liability of cities and of quasi corporations like counties in this state. Marion County Comrs. v. Riggs, 24 Kan 255.

Where defects in a county bridge are described by witnesses who have knowledge of the same, and the character and extent of such defects are comprehensible by the ordinary mind, the jury are the judges of the safety of such bridge for travel, and evidence by a witness, even an expert, as to his opinion, is incompetent. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

But a county is only bound to exercise reasonable or ordinary care and diligence in the discovery and repair of defects in its bridges, under Taylor's Kan. Gen. Stat. 1889, ¶ 7134 (Laws 1887, chap. 237), providing that any person who shall without con

a defective county bridge may recover from the county, where the chairman of the board of county commissioners shall have had five days' notice of such defects prior to the time when such damage was sustained. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

In Monroe County v. Flint, 80 Ga. 489, it was held that a county was not liable for injury from a defective bridge although no bond was taken and more than seven years had expired, under Ga.tributory negligence sustain damage by reason of Code, § 671. providing that the contractor must in his bond make a condition to keep it in good repair for at least seven years, as the construction would be that a contractor would be liable and the county would be liable if they failed to take the bond, and the contractor would be liable to keep the bridge in good repair for seven years, and the liability of the county did not extend beyond that. This case virtually overrules Mackey v. Murray and Whitfield Counties, 59 Ga. 832, but does not refer to that case.

In an action under Taylor's Kan. Gen. Stat. ¶ 7134 (Laws 1887, chap. 237), to recover for injuries occasioned by a defective bridge, it must be proved that the chairman of the county board had notice of such defect, and the presumption that another

Supers. 142 N. Y. 271; Mower v. Leicester, 9| the contractors, who alone are liable for the Mass. 247, 6 Am. Dec. 63. failure to keep it in repair.

The maintenance of highways and bridges is a public, not a private, function of government, and for its exercise a county does not incur a liability to an individual.

Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Lloyd v. New York, 5 N. Y. 374, 55 Am. Dec. 347; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332.

A county, in caring for highways and bridges, performs a duty properly belonging to the towns within its limits; a town not being liable for defects in highways and bridges, the county can incur no liability by the performance of this duty.

2 Dill. Mun. Corp. SS 1028-1030; Engel v. Eureka Club, 137 N. Y. 100; Nolan v. King, 97 N. Y. 565, 49 Am. Rep. 561; Pack v. New York, 8 N. Y. 222; Blake v. Ferris, 5 N. Y. 48; Kelly v. New York, 11 N. Y. 432; McCaf ferty v. Spuyten Duyvil & P. M. R. Co. 61 Ñ. Y. 178; Engel v. Eureka Club, 137 N. Y. 100.

Gray, J., delivered the opinion of the court: Plaintiff's intestate lost his life through the breaking down of the bridge over Newtown creek, and this action was brought to recover damages of the defendants, the county of Queens and the city of Brooklyn, for their alleged negligence with respect to the condition of the bridge. A bridge had long existed over Newtown creek, which was the boundary line between the counties of Kings and Queens; and, pursuant to an act passed in 1892, the boards of supervisors of these counties had made a contract for its reconstruction. Meanwhile, a temporary foot bridge, for the accom

Hill v. Livingston County Supers. 12 N. Y. 52; Barber v. New Scotland, 88 Hun, 522; Martin v. Brooklyn, 1 Hill, 545; Waldron v. Hav erhill, 143 Mass. 582; Doherty v. Braintree, 148 Mass. 495; Hawks v. Charlemont, 107 Mass. 414; Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Bigelow v. Randolph, 14 Gray, 541; Chidsey v. Canton, 17 Conn. 475; Reed v. Bel-modation of foot passengers during the progfast, 20 Me. 246; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302: Morey v. Newfane, 8 Barb. 645; People, Van Keuren, v. Esopus Town Auditors, 74 N. Y. 316; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332.

The bridge in question was in the control of member told him will not be indulged. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

ress of the work, was erected, and made use of by the public. The plaintiff alleges that this temporary bridge was insufficient, out of repair, inadequate for its purposes, and not calculated to bear the strain to which it would be subjected, and that the defendants were

A county was liable for injuries caused to a person by a defect in a bridge, under Mass. Stat. 1794, re-chap. 30, which provided for imposing one half the expense on said county and the other half on a town, although the officers of the town had always made the necessary repairs, receiving one half of the expense thereof from the county. It was held that both the town and the county would be equally liable, but after verdict nonjoinder of the town could not be set up. Lyman v. Hampshire County, 140 Mass. 311.

Where the evidence showed that the county built, maintained, and undertook to repair a bridge at the expense of the county, which cost more than $200, the court properly instructed the jury "there is no dispute of the fact that the bridge and approaches in question were built and paid for by the county." Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307.

Where plaintiff was injured by stepping into a hole on a bridge, and there was evidence that it had existed for ten years, and that the officers of the

The mere fact that the board of county commissioners established a rule that the matter of repairing bridges should be left to the commissioners in whose district the bridge is located did not tend to show whether or not the chairman had actual no-county were very frequently on the bridge, it was a tice of the defective and dangerous condition of the bridge, and such evidence was properly refused. Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307.

question for the jury whether the county might have had notice by reasonable diligence, and whether the injury to the plaintiff might have been prevented by care and diligence on the part of the

See subhead Where the injury was caused by the county; and the fact that he had previous knowlfright of a horse, I. c.

Massachusetts.

In Massachusetts there is a statute imposing a liability.

edge of the defect was not conclusive evidence of his negligence. Lyman v. Hampshire County, 140Mass. 311.

Michigan.

negligence in not keeping the same in repair.
There appear to be no cases against counties under
this statute.
Nebraska.

In Nebraska a county was not liable in the absence of any statute, but there is now a liability imposed by statute for injuries caused to travelers from defective bridges.

Under Mass. Stat. 1877, chap. 234, and 1879, chap. Under How. (Mich.) Stat. § 1442, the township. 244, providing that for injuries the plaintiff should village, city, or corporation whose corporate auwithin thirty days thereafter give written notice thority extends over a public highway, street, of the time, place, and cause of said injury, a no-bridge, or culvert, is liable for injuries caused by tice was sufficient where it stated the name of the bridge and that said injuries were caused by a defect in the planking of the said bridge, one of the plank being insufficient in length, which insufficiency caused a hole in the said bridge into which I fell," although it appeared in evidence that there were three holes of a similar character, but the others were not as large as the one into which the plaintiff fell. The notice was also sufficiently addressed: "To Lewis Warner, Treasurer County of Hampshire. Dear Sir,-I hereby give you notice that I have this day received bodily injuries, etc.," under Mass. Stat. 1877, chap. 234, providing that notice may be given in the case of a county to any one of the county commissioners or to the county treasurer. Lyman v. Hampshire County, 138 Mass. 74.

A county was not liable for injuries caused by a defective public bridge in the absence of any statute imposing a liability. It was said: "Counties were not liable at common law for injuries caused in the manner set forth in the petition in this case, and our statute, in force at the time of the alleged injury, did not change the common-law rule." Woods v. Colfax County Comrs. 10 Neb. 552.

But a county was liable for negligence in failing

negligent in permitting its use by the public in that condition. The county of Kings, under chapter 954, Laws 1895, became absorbed on January 1, 1896, into the city of Brooklyn, which was therefore made a defendant. The county of Queens, the other defendant, demurred to the complaint, for not stating facts sufficient to constitute a cause of action against it. The demurrer was sustained at the special term and at the appellate division of the supreme court, in the second judicial department, which latter court has certified the case to us, as involving a question of law which ought to be reviewed by this court. That question, broadly, is whether, by any rule of law, as established in this state, a county may be held liable at the suit of a private individual who has received personal injuries from a defective bridge, with the maintenance of which the county was chargeable. The question is one of considerable interest, and, beyond the general discussion, demands an interpretation of the provisions of the county law of 1892 (Laws 1892, chap. 686), the 2d section of which declares the county to be a municipal corporation. The provision is as follows: "A county is a municipal corporation, comprising the inhabitants within its boundaries, and formed for the purpose of exercising the powers and discharging the duties of local government, and the administration of public affairs conferred to keep a bridge in repair, under Neb. act July 1, 1889 (Laws 1889, chap. 7, Rev. Stat. p. 733), providing that if damage happens to any person or property by means of insufficiency or want of repair of a highway or bridge which the counties are liable to keep in repair, the person sustaining the damage may recover against the county. Hollingsworth v. Saunders County, 36 Neb. 141.

In Hollingsworth v. Saunders County, 36 Neb. 141, Woods v. Colfax County Comrs. 10 Neb. 552, was distinguished, as this statute was passed after that decision.

New Jersey.

In New Jersey there was no implied, liability for injuries to travelers from defective bridges, but there is now a statutory liability.

.

upon it by law." By the 3d section, it is provided that "an action to enforce any liability created, or duty enjoined upon it, or upon any of its officers or agents for which it is liable, or to recover damages for any injury to any property or rights for which it is liable, shall be in the name of the county." It is argued that the county, being thus declared a municipal corporation and being charged by law with the duty of maintaining the bridge, is made subject to those liabilities which it was understood the law attached to that class of corporations for breaches of duty. It is urged that as counties never were known, be fore this statute, as municipal corporations, the legislature, in its enactment, must have intended that they should be treated as upon a par with cities, when engaged in similar transactions, and that this proposition should be sustained from the point of view of public interest. In considering the question before us, we must not fail to observe that the language of 3, above quoted, seems to import no further liability than that which was then existing. The only portion of that section which is material to the case is that which provides for an action "to recover damages for any injury to any property or rights for which it is liable." In other words, what the legislature appears to have done was to provide that, where the county is liable for an injury, the Rev. p. 86, § 9), where they adopted a plan which contemplated the filling in of the sidewalk by others so as to bring it up to the abutment wall, and were preparing a permanent railing to render the approach safe, but put up no temporary barrier, and the dangerous condition was notorious for more than two weeks before the injury. Morris County Chosen Freeholders v. Hough, 55 N. J. L. 628. In this case the plan of the committee contemplated a structure with the sidewalk filled in by others to be protected by a railing erected by defendants on the wing wall of the bridge, and the defendants were in the performance of that duty when the plaintiff was injured, and the neglect consisted in not providing a temporary barrier, having knowledge of its danger. Oregon.

In Oregon there was a statutory liability for defective bridges, but this statute has been repealed. A county was not liable for injury resulting from defect in a bridge, after Oregon Code. § 347, pro

The board of chosen freeholders of a county was not liable for injuries sustained by reason of an abutment of a public bridge being without side railings, under N. J. Rev. Laws, 47, § 1, providing that the freeholders are to consider and decide upon the utility and necessity of erecting, rebuild-viding that an action may be maintained against a ing, or repairing bridges, as this statute made it county for injury to the rights of plaintiff arising discretionary. It was said that if they erred in from some act or omission of such county, was judgment, however well meaning, and the plain-amended in 1887 by omitting the words "or for an tiff's counsel were correct in their argument, they injury to the rights of the plaintiff, arising from would be exposed to all the responsibility, but some act or omission of such county or other pub**this gross injustice arises from the counsel's sub-lic corporation," It was held that Oregon Const. stituting the responsibility of the freeholders in place of the county, which latter is under all circumstances bound prima facie to keep the public bridges in good repair and liable to indictment if it do not." Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530.

An individual could not sustain an action against the board of chosen freeholders for injuries sustained by reason of a defect in a public bridge constructed by them. Cooley v. Essex County Chosen Freeholders, 27 N. J. L. 415, Following Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530.

But the freeholders of a county were liable on the ground of neglect for injuries caused by falling off the abutment wall of the approach to a bridge, under N. J. act March 15, 1860 (Pub. Laws, p. 285,

art. 1. § 10, providing that every man shall have a remedy by due course of law for injury done him in person, property, or reputation, did not prevent a repeal of this statute, although before the adoption of the Constitution there was a similar statute enacted by the territorial legislature. Templeton v. Linn County,22 Or. 313,15 L. R. A.730. In this case the statute was repealed before the injury was caused. In Templeton v. Linn County, 22 Or. 313, 15 L. R. A. 730, the case of McCalla v. Multnomah County, 3 Or. 424, was distinguished, as the statute was different in that case.

But under Oregon Code Civ. Proc. subd. 4, § 870, authorizing the county court to provide for the erection and repair within the county of public bridges on any road or highway, and Laws 1854-55, p. 168, act June 7, 1854, § 4, authorizing an action

and protection of the public within their boundaries. While in the people resided the sovereign right to declare the general mode of their government, it was the appropriate duty of their legislative body to so arrange the territory of the state into civil divisions, and to so apportion among them governmental duties, as would best conduce to the advantage of its citizens. By the common law of England, a county, though sometimes regarded as a quasi corporation, could not be subject to a civil action for a breach of its corporate duty unless such an action was expressly given by statute. The duty of maintaining and repairing bridges belonged to it, but the only remedy for a breach of that duty was by presentment or indictment. An unsafe condition of a highway, or a bridge as a part of the highway, was regarded as the subject of a popular action, and not of a private action. In Russell v. Devon County, 2 T. R. 667, which was an action by an individual against the inhabitants of a county for an injury sustained through the defective condition of a county bridge, it was held that they were not such a corporation, or quasi corporation, against whom such an action could be maintained. It was reasoned that, while the inhabitants of the county might be a corporation for some purposes, no statute had authorized such an action, and that the action would be one against the public. The authority of that case, as settling the rule at common law

action shall be in the name of the county. If, prior to the passage of the county law, the county was not liable for such an injury as was sustained in the present case, did it become so thereafter, by implication from the language of the 2d section, as argued for the appellant, in the use of the words "municipal corporation," or by reason of the 3d section? To a clear understanding of the question, it may be well to consider what was the legal status of counties of this state, and then, incidentally, what is that of a municipal corporation proper, such as an incorporated city, The civil divisions of a state into counties had their origin in England, where, preceding the organization of the Kingdom itself, they were thereafter continued, from recognized necessities in government, as other countries had their departments or their provinces. In such divisions it was found that the purposes of local government and of the administration of justice were promoted. Differing from England in their origin, in this country they were first created by the legislatures of the various colonies, and subsequently by the states of the Union. They were invested with such corporate attributes as were essential to a proper performance of the duties of local government, They were, in effect, subdivisions of the governed territory, established for the more convenient administration of government and having such powers as were necessary to be exercised and for the welfare, advantage, against a county for an injury to the rights of And under Oregon Laws, December 19, 1865, § 4 plaintiff arising from some act or omission of said (Oregon Laws, 723, § 40, note), providing that a county, a county was liable where a plank in the bridge of 10 feet or more span shall be built in a floor of a bridge was broken or too short, and one good substantial manner and covered with sound horse of a team becoming frightened pushed the plank well spiked down, the county was chargeother horse.causing him to step off the bridge draw-able with negligence in not having planks well ing the team and buggy over and injuring plaintiff. It was further held that act February 21, 1887, amending Code Civ. Proc. chap. 4, title 4, § 347, restraining the right to maintain an action against the county to cases arising on contract, which act was passed after this action was commenced, did not affect plaintiff's claim. It was said: "The 14th Amendment declares that the state 'shall not deprive any person of . . . property without due process of law.' Assuming, as I do for the present, that the plaintiff's right of action, whether vested or not, is not 'property,' within the meaning of this amendment, there is nothing in the Constitution of the United States or of this state prohibit-perform their duties, and Oregon Code, p. 235, § 347, ing the passage of retrospective laws by the latter, provided they do not impair the obligation of contracts, or partake of the character of ex post facto laws. Subject to these qualifications, the state may pass retrospective laws, and thereby devest vested rights, without violating the Constitution of the United States. . . . And admitting that the right to maintain this or an equivalent action for the redress of this wrong is a vested one, of which the plaintiff ought not to be wantonly deprived, it is clear the legislature may do so, if it will, unless the Constitution of the state is in the way." But it was further held that, under Or. Const. art. 1, § 10 providing that every man shall have a remedy by the course of law for injury done him in personal property or reputation, this right could not be taken away by any statute. Eastman v. Clackamas County, 32 Fed. Rep. 24.

And a county, having laid out and opened a road and built a bridge thereon, and invited the public to walk thereon, was estopped from denying that it was a public road. Eastman v. Clackamas County, 32 Fed. Rep. 24.

spiked down, by reason of which an injury was caused. The want of railing was negligence on the part of the county when the accident could have been prevented by a railing on the bridge. Eastman v. Clackamas County, 32 Fed. Rep. 24.

And a county was liable for damages caused by a defective bridge which was out of repair through the negligence of the county, under Oregon Stat. 863, § 19, providing that all county roads shall be under the supervision of the county in which such road is situated, and making it the duty of the county court to appoint supervisors, and giving the court power to remove the same on failure to

providing that an action may be maintained against the county for an injury to the rights of plaintiff arising from some act or omission of such county. McCalla v. Multnomah County, 3 Or. 424.

A county was liable for damages caused by a defective bridge where such bridge was a public bridge or was knowingly recognized as a county structure by the proper officials of said county, and they had been notified for a reasonable time prior to the accident of the defective condition of the bridge, or where it had been openly and notoriously unsafe to such an extent is to convey notice of its condition for a reasonable time prior to the accident. It was further held that the mere fact of intoxication of the injured party would not of itself bar a recovery. Ford v. Umatilla County, 15 Or. 313.

In Ford v. Umatilla County, 15 Or. 313, it was said that under Oregon Sess. Laws 1887, p. 45, the liability of counties had been changed but the act was passed after this accident, and it was held that it did not apply, as in Eastman v. Clackamas County, 32 Fed. Rep. 24. The decision in the Ford Case evi

that no civil action could be maintained for an | ciple of the common law has entered into our individual injury in consequence of the breach of a public duty on the part of the inhabitants of a county, has been repeatedly recognized in England and in this country. I may refer in particular to the case of Bartlett v. Crozier, in this state (17 Johns. 439, 8 Am. Dec. 428), and to the cases in Massachusetts of Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, 5 Am. Dec. 35, and Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63, and to the very thorough discussion of the cases in England and in the United States, which will be found in Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, and in chapter 23, 2 Dill. Mun. Corp. I think it, however, sufficient to confine the present discussion to what the statutes and decisions of this state require us to hold upon the question. In this state, its division into counties or sections for the purposes of local government was but a continuance of a method which, while a colony, it had adopted from England. By the Constitution of the state, it was provided that such parts of the common law as formed the law of the colony of New York were retained as the law of the state. If, under the common law, counties could not be subjected to private actions for the results of acts done in the performance of governmental duties, then it should follow that counties of this state could not become liable to such actions, unless the common law in that respect has been changed by statute. Where a prindently must have been upon the same statute upon which the prior affirmative decisions were made, although such statute was not referred to in the opinion, but reference was made to the new statute which relieved the counties from liability.

In Heiluer v. Union County, 7 Or. 83, 33 Am. Rep. 703, it was held that a county was liable for injuries caused by a bridge being out of repair, but no recovery could be had where it was not shown that the county authorities knew of its condition, or no averment made of a statement of facts from which they might have known it with reasonable diligence. It was held that if the condition of the bridge was stated to be such that the road supervisor by the use of ordinary diligence might have known of its condition, a recovery would be allowed.

South Carolina.

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form of government, it is controlling, until by legislation, express in its terms, it is modified, or negatived by the substitution of a new declaration upon the subject. The only statute for which that could be claimed is the county law of 1892, which heretofore I have referred to. Having regard to the fact that counties were created such for the better and more convenient government of the state, both upon authority and upon principle, in the exercise of those political powers which appertain to local government, and which are for the public benefit, they should be no more liable for damages resulting therefrom, at the suit of a private individual, than would be the state itself. The counties and towns of this state were always bodies corporate for certain purposes; having been endowed with capacities to purchase and to hold real and personal property, and to make contracts in reference thereto. Rev. Stat. pt. 1, art. 1, title 1, chaps. 11, 12. The corporate powers were of defined and limited extent, and in all other respects which concern governmental duties, included among which was the conservation of highways, roads, and bridges, they were merely divisions organized for the convenient exercise of portions of the political power of the state. Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120. The commonlaw rule which rested the duty of caring for and repairing highways and bridges upon the counties did not obtain in this state. That notice was posted up at each side of the swamp. The trial judge held that no recovery could be had under the old statute on an allegation that plaintiff was riding a mare and plaintiff showed that he was driving, as the variance would be important under a statute fixing the load at a certain weight. Cope v. Hampton County, 42 S. C. 17.

Where a horse was frightened on a public bridge by reason of a piece of timber which was lying near for the purpose of repairing the bridge, and backed the buggy off the bridge where there was no railing, and injured the plaintiff, and the only allegation of defect in the repair of the bridge was that one piece of railing or bannister was absent, it was held that the absence of such piece of railing would not be called a defect in the repair contemplated by S. C. Gen. Stat. § 1087. Brown v. Laurens County, 38 S. C. 282.

See also subhead, Where the injury was caused by the fright of a horse, I. c. West Virginia.

A county was liable for injuries caused by a horse becoming frightened at a pile of large rocks on the roadside, and backing over an unprotected wall of the approach to a bridge, throwing the plaintiff out and injuring the buggy, which would not have happened if a suitable railing had been placed along the bridge, where the fall of the horse and the accident were almost simultaneous, and want of care could not be imputed to the driver. Rohrbough v. Barbour County Ct. 39 W. Va. 472. (For the West Virginia statute see Phillips v. Ritchie County Ct. 31 W. Va. 478, subd. I. b.)

Under S. C. Gen. Stat. § 1087, making the county liable for injuries from defective roads, and providing that such damage should not be recovered by the person so injured if his load exceeded the ordinary weight, amended December 19, 1892, so as to read "provided, such person has not in any way brought about such injury or damage by his own act, or negligently contributed thereto, etc.; and provided further, that such county shall not be liable, unless such defect was occasioned by the neglect or mismanagement," etc., where a person was injured before the amendment and the action was not brought until after the amendment,-it was held that if his action was under the prior statute he should negative the proviso to show that bis vehicle was not overloaded, and if the amendment applied no recovery could be had unless the county commissioners were negligent. It was fur-nied in a similar case for a defective road, but that ther held that they were not negligent in this case, where they were very active in their effort to repair a bridge over a swamp after a flood and made

a contract and gave notice that the bridges were let out for repair, and that they would not be responsible for any damages while crossing, which

In Rohrbough v. Barbour County Ct. 39 W. Va. 472, it was said that in Smith v. Kanawha County Ct. 33 W. Va. 713, 8 L. R. A. 82, a recovery was de

was on account of the negligence of the driver.
See also subhead, Where the injury was caused
by the fright of a horse, I. c.

b. From defective roads and highways.

It is held, with but few exceptions, that counties

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