Arkadelphia v. Windham

• Court: Supreme Court of Arkansas
• Citation: 4 S.W. 450,49 Ark. 139
• Parties: ARKADELPHIA v. WINDHAM
• Decision Date: 07 May 1887

4 S.W. 450

49 Ark. 139

ARKADELPHIA
v.
WINDHAM

Supreme Court of Arkansas

May 7, 1887

APPEAL from Clark Circuit Court, R. D. HEARN, Special Judge.

The appellee, Windham, brought his action against the appellant, the city of Arkadelphia, to recover damages for an injury to his horse and wagon sustained while driving over a defective railway crossing of a highway within the city's corporate limits. The complainant averred that the defendant was a municipal corporation bound by its charter to keep the streets and highways within its limits in good repair; that the defendant neglected to repair one of these at a railway crossing and that by reason of its bad condition the plaintiff's wagon was upset and broken and his horse crippled whereby he was damaged in the sum of $ 120.

A demurrer to the complaint was overruled, exception was taken and the defendant answered denying the material averments of the complaint and alleging that the defendant was injured through his own carelessness. A trial by jury resulted in a verdict and judgment for the plaintiff; a motion for a new trial was denied and the city appealed.

Judgment reversed and cause remanded.

Crawford & Crawford for appellant.

Cities and towns are not liable for injuries to individuals for the non-performance of a public duty by its officers, in the absence of a statute making them so liable. 45 Mich. 265; Angell on Highways, sec. 286; Mitchel v. Rockland, 52 Me. 123; Hyde v. Jamaica, 27 Vt. 443; State v. Burlington, 36 Vt. at page 523, and cases cited; Sawyer v. Northfield, 7 Cush. at page 494; Mower v. Leicester, 9 Mass. 249; Oliver v. Worcester, 102 Mass. 489-499; Hill v. Boston, 122 Mass. 357, and cases cited; Providence v. Clapp, 17 How. (U. S.), at page 167; Hickok v. Plattsburgh, 15 Barb. 440; Pray v. Jersey City, 32 (3 Vroom.,) N. J., 394; Detroit v. Corey, 9 Mich. 165-184; Detroit v. Blakeby, 21 Mich. 84; Detroit v. Putnam, supra; Winbigler v. Los Angeles, 45 Cal. 36; Young v. Charleston, 20 S. C. Repts., 116; Navasota v. Pearce, 46 Tex. 525; Angell on Highways, secs. 258-286.

OPINION

[49 Ark. 140] BATTLE, J.

It is the duty of incorporated towns and cities of this State to keep their streets in repair, but no statute, expressly or by implication, makes them liable to a private action by an injured party for damages sustained by reason of a failure to discharge the duty. In the absence of such a statute are they liable to a civil action by an individual for such damages?

Upon this question the authorities are not agreed and differ as to where the weight of authority lies. But while they differ in this respect they are almost unanimous in holding that an action cannot be maintained against counties or parishes unless authorized by statute, for damages sustained through their neglect to keep their bridges and...