Collier v. City of Ft. Smith

• Decision Date: 24 December 1904
• Citation: 84 S.W. 480
• Parties: COLLIER v. CITY OF FT. SMITH.
• Court: Arkansas Supreme Court

84 S.W. 480

COLLIER v. CITY OF FT. SMITH.

Supreme Court of Arkansas.

December 24, 1904.

Appeal from Circuit Court, Sebastian County; Styles T. Rowe, Judge.

Action by S. J. Collier against the city of Ft. Smith. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Winchester & Martin, for appellant.

McCULLOCH, J.

Appellant, Collier, sued the city of Ft. Smith, alleging that the city, by its servants, placed an obstruction in the nature of a barricade across one of the public streets which was open to the public, and suffered the same to so remain overnight without display of danger signals or other warning to the public, and, while traveling that way, plaintiff, without fault or negligence, and by reason of such obstruction, was thrown from his horse, and received great bodily injury and suffered damage, for which he prayed judgment. The court sustained a demurrer to the complaint and dismissed the suit, the plaintiff having declined to amend or plead further.

Is the city liable in damages for the negligence of its officers and servants in this respect? It is settled by the decisions of this court that a city is not liable for nonfeasance in failing to put the streets in repair (Arkadelphia v. Windham, 49 Ark. 139, 4 S. W. 450, 4 Am. St. Rep. 32), or in failing to keep them in repair (Ft. Smith v. York, 52 Ark. 84, 12 S. W. 157). Those cases hold that, from a duty owing by a municipality to the public to put the streets in repair and to keep them in repair, liability to an individual for damages suffered specially will not be implied in the absence of a statute making it liable. This court, however, held in Mayor of Helena v. Thompson, 29 Ark. 569, that the city was liable for damages caused by raising the grade of a street, which changed the natural channel of a stream, and in failing to construct ditches and culverts of sufficient capacity to carry off the water thus diverted, thereby flooding the plaintiff's land. There is no necessary conflict between the earlier case (29 Ark.), holding the city liable for misfeasance of its officers and servants, and the two later cases (49 Ark., 4 S. W., 4 Am. St. Rep., and 52 Ark., 12 S. W.), holding that cities and towns are not liable for nonfeasance. This distinction is not without reason, for, in the absence of a statute expressly imposing liability to individuals for nonperformance of a duty to the public, none will be implied, though liability might be implied from the commission of a positive wrong, whereby an individual suffers injury. Nor is this distinction without high authority to support it. 2 Dill. Mun. Corp. § 1024; Elliott on Roads, § 612, and cases there cited.

Though the facts are different, the reasoning upon which the court reached a conclusion in Arkadelphia v. Windham, supra, undoubtedly leads to a conclusion against the liability of a municipality upon the facts in the case at bar. Mr. Justice Battle, speaking for the court, after showing the unanimity with which all the authorities hold that no action can be maintained against counties, unless authorized by statute, for negligence in keeping highways in repair, says: "The duty of keeping in repair the public highways in their respective limits is imposed on both, for the benefit of the public, without any consideration or emolument received by either. Before the incorporation of the town or city, the county was charged with the duty of keeping its highways in repair. When the town or city becomes incorporated, that duty is transferred to the town or city— from one governmental agency to another. The object, purpose, reason, and character of the duty are the same in both cases. This being true, there can be no reason why the town or city shall be any more liable to a private action for neglect to perform this duty than the county previously was, unless the statute transferring the duty clearly manifests an intention in the Legislature to impose this liability."

It is not to be denied that there is authority in abundance for holding that there is an implied liability on the part of cities and towns for damages for negligent failure to repair the streets, and it is not free from doubt as to where the weight of authority rests. And we can conceive of a state of facts, such as existed in the case of Mayor of Helena v. Thompson, supra, where, in direct consequence of some positive act of the officer or agent of the corporation in the discharge of a public duty, an individual sustains injury to his property, the municipality should and would be held liable to respond in damages as compensation for such injury, consistent with the ruling and reasoning in...