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duty was confided to the officers of towns. | tion, therefore, that the state legislature has But special acts were passed from time to time, the power to build bridges where they shall be whereby the burden has been shifted so as to necessary for the convenience of its citizens. be imposed, either upon two or more towns, or It is the duty of the state governments upon the county, or upon both counties and to afford their citizens all the facilities of intertowns. Hill v. Livingston County Supers. 12 course which are consistent with the interests N. Y. 52. In the county law of 1892 it was of the community." To charge the duty of provided that where a bridge spans any of the building and maintaining a bridge over navinavigable tide waters of this state, as in the gable waters upon the boards of supervisors of present case, forming a boundary line between counties was but a convenient mode of exercistwo counties, the expense of its maintenance is ing that governmental function. The power made an equal charge on the two counties in thus conferred upon the county officers was for which the bridge is situated. § 68. Whether the public benefit, and in its exercise they acted the maintenance of highways and bridges is as the agents for the public at large. The state, devolved as a duty upon the towns or upon the in its sovereign character, had a duty to percounties of the state, it must be regarded as a form in the maintenance of the bridge as a part duty, in its nature, public and governmental. of the public highway, and its performance Lorillard v. Monroe, 11 N. Y. 392, 62 Am. might properly be delegated to the officers of Dec. 120. There is no distinction to be made the particular civil division. The corporate between highways and bridges, in the matter body of Queens county derived no especial adof the duty. A public bridge is a public high-vantage from it in its corporate capacity, and, way. Angell, Highways, 40. Its maintenance is quite as much a governmental duty towards the public within the territory of the state, and the principle that the state holds its highways in trust for the public is applicable. Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336. This is especially true where a bridge is necessary to cross the navigable waters of the state, but it is true under all circumstances. In People v. Rensselaer & S. R. Co. 15 Wend. 113, 134, 30 Am. Dec. 33, it was said by Savage, Ch. J.: "There can be no quesare not liable for injuries to travelers caused by roads or highways being out of repair, in the absence of a statute imposing a liability. Some of the states which allow a liability for defective bridges refuse to apply the same rule in regard to roads, although recognizing that the principle is the same. In Maryland a recovery is allowed. So in New Jersey where the county made an excavation in the road. In South Carolina and West Virginia the statute imposes a liability.

In Indiana a county was held not liable for personal injuries sustained while driving upon a free gravel road of a county, by reason of defects in the construction and repair of such road. It was said that the principle was the same in regard to roads as in regard to bridges, but that Indiana has adopted a rule in regard to bridges which was contrary to the weight of authority [since overruled, see supra, I. a], and it would not be extended to apply to roads. Cones v. Benton County Comrs. 137 Ind. 404.

And a county was not liable for injuries caused from a defective highway where lumber on the same caused plaintiff's horse to run away, as the law has not given boards of commissioners power to raise money to repair highways, nor imposed the duty of keeping public highways in repair upon county boards. Abbett v. Johnson County Comrs. 114 Ind. 61.

In Fulton County Comrs. v. Rickel, 106 Ind. 501, it was said that counties are not responsible for defective highways.

And for damages occasioned by a defective side. walk under its control a county was not liable. It was said that counties partake of the immunity of states, and are not subject to liabilities of this kind. Clark v. Lincoln County, 1 Wash. 518.

So where a party was injured by reason of a sidewalk on the court-house premises being out of repair a recovery was refused. Dodsall v. Olmsted County, 50 Minn. 96, 44 Am. Rep. 185.

Where a county contracted for a curb between a park owned by the county and the street, and the commissioners prohibited the dirt from being

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if that be true, it should not be liable for the negligent acts of the board of supervisors, upon whom the duty was rested of reconstructing the bridge. It should be as exempt from a private action as would be the state itself. In People v. Queens County Supers. 142 N. Y. 271, we expressly held that the power conferred upon the counties of Kings and Queens with respect to this work was in the public interests, and for the public benefit. As lately as in the case of Hughes v. Monroe County, 147 N. Y. 49, ante, 33, where it was sought to hold the dethrown on the grass, and the contractor placed it on the sidewalk without warning or protection to passersby at night, and a person fell into the trench, no recovery could be had, as the work was not being done by the county but by independent contractors. Eby v. Lebanon County, 166 Pa. 832. In Worden v. Witt (Idaho) 39 Pac. 1114, in an action against a county commissioner individually for injuries received from defective highways, it was said: "To hold counties or county commissioners liable for all injuries arising from defective highways, in this country would result in two very undesirable conclusions, -the literal abrogation of the office of county commissioner (for no sane man would assume the position, with such a liability attached), and the bankruptcy of every county in the state."

In May v. Ralls County, 31 Fed. Rep, 473, it was said that counties are not liable for failure to keep roads, bridges, or public buildings in repair and in a safe condition, and for injuries sustained in consequence of such neglect on the part of the county officials a suit is not maintainable against the county.

Under N. J. Pub. Laws 1889, p. 58, an act to compel boards of chosen freeholders to acquire, improve, and maintain public roads, where a declaration alleged that it thereby became the duty of the board to maintain a highway in good and safe condition for public use, and that plaintiff was injured while passing along the highway, which was out of repair and in an unsafe condition, it was held that a municipal corporation charged with the performance of a public duty was not liable to an individual for neglect to perform or negligence in the performance of such duty, whereby a public wrong has been done for which an indictment will lie, although such an individual has suffered special damages thereby, and this exemption was put on the ground of ancient precedent and public policy. But the other count of the declaration, that said board wrongfully and illegally made a deep excavation in a public highway under the control

fendant liable for injuries sustained by the responsibility depends upon the nature of the plaintiff while operating a steam mangle in the powers exercised. Nelson, Ch. J., in Bailey laundry of an insane asylum, the doctrine was v. New York, 3 Hill, 531, 38 Am. Dec. 669, displainly asserted of the nonliability of counties cusses the powers of cities as municipal corpoand of other municipal corporations for the rations, but the discussion is not without its acts of their officers when engaged in the dis- usefulness to the present case. He laid down charge of public duties, and to that extent ex- the doctrine (which has been followed in subercising acts of sovereignty. This doctrine of sequent decisions in this court) that a clear disnonliability, resting as it does upon the prin- tinction exists between the powers which beciple that the grant of power is to the county long to a city as a municipal body. He in its political character, and as a means of the observed that, if they were "granted for public exercise of the sovereign power in measures of purposes exclusively, they belong to the corpublic interest and for the public benefit, is porate body in its public, political, or municiillustrated in various decisions of this court pal character. But if the grant was for purwhere the question arose as to the liability of poses of private advantage and emolument, a city for corporate acts resulting, through a though the public may derive a common ben. negligent performance, in injury to individuals. efit therefrom, the corporation, quoad hoc, is to With respect to such a municipal corpora- be regarded as a private company. It stands tion proper as a city, the rule of law is well on the same footing as would any individual settled by frequent adjudications that the or body of persons upon whom the like special grant by the legislature of a city charter franchises had been conferred." This docauthorizing and requiring a city to perform trine was reiterated in Lloyd v. New York, 5 certain duties renders it liable to a private ac- N. Y. 369, 55 Am. Dec. 347, and in Maxmilian tion for neglect in their performance, when a v. New York, 62 N. Y. 164, 20 Am. Rep. 468, county or town would not be so liable. A dis Folger, J., in the latter case, expounding the tinction exists between such a corporation, nature of the duties imposed upon a municipal which is created by charter, and is granted the corporation, said: "One is of that kind which power to own and to manage private property, arises from the grant of a special power, in the and is invested with particular franchises, and exercise of which the municipality is as a legal a municipal corporation, which is created for individual; the other is of that kind which the purposes of state government, and to exer- arises, or is implied, from the use of political cise, as one of its civil divisions, certain of its rights under the general law, in the exercise of political powers. In the case of the former, its which it is as a sovereign. The former power of said board, into which the plaintiff while law- where such road was negligently constructed and fully passing along the highway fell and was in- left to remain by the defendants in an unsafe conjured, disclosed a special injury inflicted on plaintiff dition for travelers, where the plaintiff used due by a common public nuisance, created, not by the care and caution and was injured. Alleghany defendant's neglect, but by its active wrongdoing, County Comrs. v. Broadwaters, 69 Md. 533. and there was no reason arising out of public policy why municipal corporations should be shielded from liability when a private injury was inflicted by their wrongful act as distinguished from mere negligence, and that count charged a cause of action. Hart v. Union County Chosen Freeholders, 57 N. J. L. 90.

A recovery was allowed against a county where a minor child was killed while riding a horse, his death being caused by the bad condition of the county road. It was held that the care and caution required of a traveler on a public road were such as persons of common prudence ordinarily exercised. Hartford County Comrs. v. Hamilton, 60 Md. 340, 45 Am. Rep. 739.

Under Md. act 1853, chap. 239, § 1, constituting and declaring the county commissioners a corporation and body politic, and providing that they shall have charge of and control over the property owned by the county, and over county roads and bridges, a county was held liable for injuries caused by a defective road. In this case the case of Russell v. Devon County, 2 T. R. 661, was distinguished, as in that case the county was not a corporation for that purpose and had no corporate fund. The liability was placed on the same ground as that of a city. Anne Arundel County Comrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557.

So, a county was liable for injuries caused to a wagon and carriage by a defective road through the negligence of the supervisor, and this liability was not changed by Md. act. 1868, § 8, directing the commissioners to require the road supervisors to give bond to the state, which bond may be put in suit for the benefit of any person suffering by the neglect of said supervisors, as this does not take away the right of action against the commissioners of a county. An instruction that no recovery could be had against a county for injuries from a road out of repair, if the injuries could have been avoided by using another road in a good condition but a short distance further, was erroneous as it did not state that there was any knowledge on the part of the plaintiff that one road was dangerous and the other was safe. Calvert County Comrs. v. Gibson, 36 Md. 229.

A county was liable for injuries caused by a defective highway through improper work done under the supervision of the county officials, under S. C. Gen. Stat. § 1087, providing that counties are liable for injuries caused from defective highways and bridges. This statute was not unconstitutional in that it deprived counties of their property without process of law, or that it denied to counties the equal protection of the law, or that it subjected counties to restraints other than are laid upon oth

it imposed a new obligation upon counties for the benefit of another class of citizens when they are guilty of no neglect of duty. Blum v. Richland County, 38 S. C. 291.

And where the plaintiff was injured by falling offer corporations under S. C. Const. art. 1, § 12, or that of an unprotected precipice on the edge of a road, an instruction that if he traveled on a dark night walking on the edge of the road without a light, and voluntarily took the dangerous edge, when by taking the middle of the road he could have avoided the accident, he could not recover, was properly reject ed, as the question of contributory negligence was one for the jury. The county was liable for inuries caused by an unguarded precipice on a road

But under S. C. Gen. Stat. § 1087, providing that any person who shall receive bodily injury or damage in his person or property through a defect in the repair of a highway, causeway, or bridge may recover in an action against the county the amount

is private, and is used for private purposes; the | certain specific purposes, before the enactlatter is public, and is used for public purposes. ment of the county law of 1892, now that Where the power is intrusted to it as they are declared thereby to be municipal one of the political divisions of the state, and is corporations their liability for corporate acts conferred, not for the immediate benefit of the is no further enlarged than what may be municipality, but as a means to the exercise of clearly read in, or implied from, the statute. the sovereign power for the benefit of all citi Their becoming municipal corporations in zens, the corporation is not liable for nonuser, name imports no greater liability, because by nor for misuser, by the public agents." The the 3d section of the law their liability for principle that a city, as a municipal corpora- injuries is confined by the language to that tion, is held to a strict liability to respond in which was existing. The liability remains as damages, at the suit of a private individual, it was,-neither greater nor less. No uew for its negligence in the maintenance of its duty or burden has been imposed upon counstreets and other properties, was thus explained ties in respect to the maintenance of bridges by Selden, J., in Weet v. Brockport, 16 N. Y. over navigable boundary streams. The duty 102, footnote: "The surrender by the govern- which always existed for public purposes and ment to the municipality of a portion of its sov- for the public benefit is continued. The work ereign power, if accepted by the latter, may of maintaining the bridge in question was with propriety be considered as affording am- properly charged upon the counties, because it ple consideration for an implied undertaking, could be more advantageously performed by on the part of the corporation, to perform with them than by the towns. Towns themselves fidelity the duties which the charter imposes.' were not liable for damages arising from deThe reasoning of these cases has its pertinency fective highways and bridges until, by an act to the present case. The county law of 1892, of the legislature in 1881, the liability which in denominating a county as a municipal cor formerly rested upon the commissioners of poration, specifies the purpose to be that of highways was transferred to them. If it was "exercising the powers and discharging the necessary, in order that towns might be made duties of local government and the administra- liable in private actions, that there should be tion of public affairs;" and, prior to the enact- such legislation, it is as necessary, I think, ment, it existed to perform just such govern- that there should be some express legislation, mental functions. in order to impose the liability upon a county which did not previously exist. The object of the county law of 1892, in my judgment, in declaring the county a municipal corporation, the buggy, frightening the horse, causing it to run away, and upset the buggy. The condition of the road was such that it was reckless to drive over it, and contributory negligence barred a recovery. Phillips v. Ritchie County Ct. 31 W. Va. 478.

In this case it was also held that it was unnecessary for the plaintiff to allege or prove that the county had notice of the defect which caused the

I think that the principle of our decision must necessarily be this: "That as the counties of this state were bodies corporate, for of damage fixed by the finding of the jury, a re-, covery cannot be had where the injury occurred on a road under a railway trestle, which was a divergence from the county road because the county road was very rough, although this road had been | improved some by the overseer of the road hands without any authority, as act 1883, 18 Stat. at. L. 631, providing for appointing commissioners and employing a surveyor to change the location of a high-injury. way, was the only law prescribing the mode of making a change, and the act of the overseer in this case was without lawful authority, even if it could be assumed that the county commissioners approved of this change. Hill v. Laurens County, 34 S. C. 141. And under this act a recovery could not be had where the injury arose from a defective ferry boat operated by the county, as a ferry boat was not a highway within the intention of the statute. Chick v. Newberry & Union Counties, 27 S. C. 419.

In Smith v. Kanawha County Ct. 33 W. Va. 713, 8 L. R. A. 82, it was held that under W. Va. Code 1887, chap. 43, § 7, providing that the road surveyor shail cause the roads and bridges to be put in good order and repair to the proper width, the county was not liable where the party was injured while driving on a narrow road and two calves appeared suddenly out of the bushes causing the horse to become frightened and back over a steep bank. It was held that the road was as wide as could be expected at that place with a steep river bank on one side and a slipping hillside on the other. It was further held there was some evidence to show that the plaintiff pulled the horse. The negligence of the driver barred a recovery.

Under W. Va. Code, chap. 43, imposing a liability on counties for injuries sustained by reason of a public road or bridge being out of repair, the county was not liable where about eight days before the injury a landslide came into the road filling it about 4 feet on one side and extending nearly to the other side, and plaintiff attempted to drive over the same and struck a small stone, which tilted

Under W. Va. Code 1887, p. 331, chap. 43, providing for an action against a county court to anyonewho has sustained injury by reason of a public road or bridge being out of repair, and Code 1868, chap. 43, § 7, p. 267, providing that every surveyor of roads, shall cause the same to be put in good repair and to be clear and "kept clear of rocks, falling timber, landslides, and other obstructions," the county was not liable for an injury caused by a dead tree standing within 5 feet of the roadsidewhich fell on the plaintiff and injured him. This law was amended three.days after the accident, requiring the surveyor to remove all dead timber standing within 30 feet of the road, and W. Va. Code 1887, chap. 43, § 7, p. 318, and the law prior to the Code of 1868, required the surveyor to keep the roads secure from the falling of dead timber therein. It was held that the omission in the law in existence at the time of the accident indicated that the surveyor was only to pick up falling timber and obstructions, and not to cut it down. It was further held that if it was his duty to cut it down an action would not lie against the county court as there was no statute imposing a liability. Watkins v. Preston County Ct. 30 W. Va. 657.

c. Where the injury was caused by the fright of a horse.

In the states where a recovery may be had for injuries from a defective bridge, either on account of implied liability or by statute, a question has been made as to a recovery for an injury caused through the fright of a horse. It seems that.

was in order that it might be sued as a legal | pervisors were executing a certain public duty, entity in cases where previously actions were imposed upon them as the proper public agents maintainable only in the name of the board of in that particular civil division of the state, supervisors. and that the county could not be subjected to a private action for injuries occurring in, or by reason of, the performance of the work. I do not think it is consonant with the reason of the rule of law which concedes to the sovereign power in government an exemption from liability that a private individual may have a right of action against those who have but exercised a lawful power which was vested in them by the legislative body for the public convenience and welfare, and not for any private benefit of the corporate body.

The appellant's counsel attacks the reasoning which distinguishes between counties and chartered municipal corporations in respect to their liability for corporate acts, as being unsubstantial and artificial, and he is able to cite us to some observations by text-writers to that effect. The distinction is none the less real, however, because processes of reasoning might lead to the conclusion that the two classes of corporations should be placed upon a par in their attributes and incidents. The distinction rests upon established conditions of state gov-! ernment, which must endure until the legislature expressly changes them. It has not unfrequently been the case that statutes have so far modified some common-law condition, under which we were governed as a society, as to subject what remained of it to criticism similar to that now indulged in, but the rule is firmly established that the common law has been no further abrogated by a statute than is to be understood from the umistakable import of the language used. Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361, presents an interesting discussion, in point, under that head. The conclusion I have reached after a careful consideration of the subject is that in the work of construction of this bridge the board of suwhere the injury would not have happened if there | had been sufficient railing, the liability was allowed, but on this there is some little conflict, and a case in Indiana held that where the horse was frightened at the defective bridge and over-nedy v. Cecil County Comrs. 69 Md. 65. turned the buggy a recovery was denied.

The judgment appealed from should be affirmed, with costs.

Under an Oregon statute, providing for an action against the county for injuries to the rights of plaintiff arising from some act or omission, a county was liable where a horse became frightened because a plank was broken, and caused the other horse to go over a bridge which was unprotected. Eastman v. Clackamas County, 32 Fed. Rep. 24.

And under a statutory liability to travelers from defective bridges a recovery was had where a horse was frightened by a hole in the bridge, and backed the buggy over into the stream below, and there were no banisters or railings. There was no question made in the case as to the proximate cause being fright. Cook v. De Kalb County, 95 Ga. 218. Where the plaintiff's horse took fright and backed her buggy off the approach to a bridge which had no guards or railings, the county was liable if the chairman of the board of county commissioners had notice of the defect and it was a county bridge. The question of contributory negligence was one for the jury, and the court did not discuss the question of fright. Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307.

Where plaintiff attempted to cross a small bridge which was out of repair, and his mules became frightened, and he was injured, an instruction that if the accident was caused by the fright of the mules the verdict must be for the defendant, unless the fright was caused by a defect in the road manifestly calculated to frighten horses of ordinary gentleness, and the defendants by the use of ordinary care and diligence might have known of the same in time to repair it, was erroneous in stating that the plaintiff was not entitled to recover under any circumstances unless the fright of the mules was caused by failure of duty on the part of the defendants. It was said that the fright of the

Bartlett and Martin, JJ., dissenting: Where the duty to construct a highway or bridge is imposed by law upon a county, we see no reason why, in case of negligence and consequent injury to the citizen, there should be any substantial difference as to liability between counties and cities, as the former, like the latter, are now municipal corporations. The county, in the performance of this duty, is clothed with a special power, not intrusted to it as a political division of the state in the exercise of the sovereign power for the benefit of all citizens, but strictly in the interest of the municipality.

mules did not necessarily imply any negligence or culpability on the part of the plaintiffs, and it was error to direct the attention of the jury to this sole inquiry without considering anything else. Ken

And the fact that the conduct of the horse might have been one proximate cause of an injury from the failure to have railings on a bridge would not prevent the county from being liable if its negligence was also a proximate and concurring cause of the injury. Parke County Comrs. v. Sappenfield, 6 Ind. App. 577, 10 Ind. App. 609.

A county was liable for injuries resulting from a defective county bridge, where a hole in the bridge was covered by a stone which frightened plaintiff's horses, and there were no barriers on the approaches to protect the same. Moreland v. Mitchell County, 40 Iowa, 394.

And a county was liable where a horse was frightened at a pile of rocks on a road, and backed the buggy over an unprotected approach to a bridge, where the fall of the horse and the accident were simultaneous. Rohrbough v. Barbour County Ct. 39 W. Va. 472.

So, a county was liable for injuries caused by failure to keep a bridge in repair where a horse was frightened at a crooked log placed at the corner of the bridge to keep the earth from washing away, and there was no railing. Sullivan County Comrs. v. Sisson, 2 Ind. App. 311.

So, where the horse shied and death was caused by want of a railing over a county bridge, a recovery was allowed, in Shelby County Comrs. v. Blair, 8 Ind. App. 574.

In Boone County Comrs. v. Mutchler, 137 Ind. 140, it was said that a county was liable where plaintiff's horse was frightened at a hog in a ditch on a free gravel road, and backed the buggy over the side of the bridge where there was no railing. The court said: "It is quite certain that the injury in this case would not have been caused had there been proper guards upon the bridge. And if it be conceded that the fright of the horse and the defect in the bridge were concurrent causes of the injury,

INDIANA SUPREME COURT.

BOARD OF COMMISSIONERS OF JAS APPEAL by defendant from a judgment of

PER COUNTY, Appt.,

v.

the Circuit Court for Newton County in favor of plaintiff in an action brought to re

John L. ALLMAN, Admr., etc., of Reuben cover damages for the death of plaintiff's in

P. Ryan, Deceased.

(142 Ind. 572.)

1. Counties, being subdivisions of the state and instrumentalities of government exercising authority given by the state, are no more liable for the acts or omissions of their officers

than the state.

testate which was alleged to have been caused by a bridge which defendant had allowed to become defective. Reversed.

The facts are stated in the opinion. Messrs. S. P. Thompson and Stuart Brothers & Hammond, for appellant:

While the statute makes it the duty of the county board to cause the bridges of the county to be kept in repair, the county is not liable for injuries caused by defects in such bridges for the reason that there is no statute imposing such liability.

2. A county is not liable by implication for damages caused by negligence of its officers in respect to keeping bridges in repair, where the county commissioners have no Cones v. Benton County Comrs. 137 Ind. 404; power to appropriate county funds for that pur-Bailey v. Lawrence County, 5 S. D. 393. pose except when and so far as the road district is unable to make the repairs, and there is no statute giving a right of action against the county for its negligence or that of its commissioners, or authorizing the use of county funds to pay damages caused thereby.

3. It is the duty of the court to overrule a decision or series of decisions if clearly incorrect either through a mistaken conception of

the law or through misapplication of the law to

the facts, if no injurious results would follow from their overthrow.

(November 25, 1895.)

both present and active in the result, yet, as neither party was to blame for the fright of the borse, and as the appellant was alone to blame for the defect in the bridge, it is quite evident that the appellant cannot escape responsibility. Fulton County Comrs. v. Rickel, 106 Ind. 501; Shelby County Comrs. v. Sisson, 2 Ind. App. 311."

But a county was not liable for injuries caused by a horse becoming frightened at a pile of lumber on a road and running away, as the county was not liable for defective roads. Abbett v. Johnson County Comrs. 114 Ind. 61.

In Fulton County Comrs. v. Rickel, 106 Ind. 501, it was held that a county was not liable for injuries caused by a horse becoming frightened at a plank standing upright in a bridge, as an injury caused by the horse's fright was not the proximate result of a breach of duty, and no greater duty is imposed upon counties in respect to bridges than that of using ordinary care and diligence to make and keep them safe for travel. In this case the frightened horse caused the carriage to upset and there was no question made as to defective railing, but fright of the horse at the defective bridge seems to have been the cause.

And a county was held not liable for injuries caused by a runaway team to a foot passenger on account of failure to erect proper barriers over a long and narrow county bridge in a large city, where the bridge was a solid stone bridge in good repair erected fifty years previous and sufficiently adequate at that time. It was further held that the commissioners were not negligent in anticipating that horses would become frightened on a wagon road and injure foot passengers; also that Pa. act February 18, 1870 (Pub. Laws, 191), providing that the commissioners of L. county are authorized to erect foot sidewalks adjoining the stone bridge at the expense of the county, was discretionary and not mandatory, for which there would be no liability. Lehigh County v. Hoffort, 116 Pa. 119, 19 W. N. C. 363.

The rule of stare decisis cannot properly be invoked as a reason for following the line of decisions which hold counties liable in such

cases.

Certainly no one would have a right to incur a risk to his person from a defective bridge on the strength of decisions holding the county liable in such cases. The fact that he did so would be a most conclusive reason why he

could not recover.

23 Am. & Eng. Enc. Law, p. 36.

If the deceased knew, as he is presumed in the absence of an averment to the contrary to

In South Carolina there is a statute imposing a liability, but where the proximate cause of the accident was the fright of a horse the county would not be held liable. Brown v. Laurens County, 38 S. C. 282.

A county was not liable under a statute requiring roads to be kept in good repair, where a horse was frightened by two calves coming out of the bushes, and backed over a steep bank. There was some evidence to show that the plaintiff was guilty of contributory negligence. Smith v. Kanawha County Ct. 33 W. Va. 713, 8 L. R. A. 82.

And under a statute imposing a liability for roads and bridges being out of repair a county was not liable where plaintiff attempted to cross a landslide on the road, and his horse ran away, as the driver was reckless. Phillips v. Ritchie County Ct. 31 W. Va. 478.

And where a horse was being driven on a buggy across a public bridge, and as he put his fore feet on the bridge became frightened by a large hole under the bridge, and, backing, threw the buggy over the edge of the approach to the bridge, and the timbers there, being rotten, gave way with the rocks and rolled down upon the plaintiff and injured him, no recovery could be had, as the injury was not received because of the hole under the end of the bridge, but from the fright of the horse. Mason v. Spartanburg County, 40 S. C. 390.

Under S. C. act, 1874, Gen. Stat. § 1087, providing that any person who shall receive injury in his person or property through a defect in the repair of a highway, causeway, or bridge, may recover in an action against the county, a county was not liable where a mule, drawing a buggy, became frightened at a placard advertisement on a bridge, and backed against the railing, which gave way and the vehicle was thrown over the bridge, and the commissioners as soon as they knew of the placard had it removed. Nor was it error to ask the jury, "Would a prudent man have driven his mule across the bridge, with two ladies in his buggy, with the sign staring him

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