Eyler v. Allegany County Com'rs

• Decision Date: 27 June 1878
• Citation: 49 Md. 257
• Parties: JOSIAH EYLER v. THE COUNTY COMMISSIONERS OF ALLEGANY COUNTY.
• Court: Maryland Court of Appeals

49 Md. 257

JOSIAH EYLER v. THE COUNTY COMMISSIONERS OF ALLEGANY COUNTY.

Court of Appeals of Maryland

June 27, 1878

Appeal from the Circuit Court for Washington County.

The case is stated in the opinion of the court.

First Exception.--At the trial the defendant offered evidence tending to prove that at the time of the construction of the canal, and after it cut the highway in question, the canal company caused a bridge to be erected by its contractors in 1852, at this point, which was burned down sometime during the war, and the bridge now standing--the bridge in question--was erected by the canal company in the place of the one destroyed, shortly afterward; that the defendant never repaired or took charge of said bridge, and never exercised ownership or control over the same; to the introduction of this evidence the plaintiff objected as inadmissible under the pleadings in this case, for the purpose of affecting the liability of the defendant, but did not object to the same for any other purpose; but the court overruled the objection, and allowed said evidence to go to the jury generally; to which ruling of the court the plaintiff excepted.

Second Exception.--The plaintiff offered eight prayers, of which only the following were considered by this court:

4. If the jury find from the evidence in the case, that the Chesapeake and Ohio Canal Company cut a canal through the public road in Allegany County, described in plaintiff's declaration, (if the jury find such road was a public road) and built the bridge in question over said canal, and thereby connected the two parts of said road so severed by said canal company, then the jury are instructed that said bridge as soon as erected was dedicated to the use of the public on said highway, and became subject to the control of the County Commissioners of Allegany County; and that if the jury further find, that the plaintiff whilst riding on said bridge, and using due care, was injured by reason of the defective condition of said bridge, resulting from the negligence of the defendant in not keeping the same in repair, then the defendant is liable to the plaintiff in this action.

8. If the jury find a verdict for the plaintiff, in estimating damages they are to consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition, in consequence of said injury, and whether said injury is in its nature permanent, and also the physical and mental suffering to which he was subjected by reason of said injury, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has thus sustained, and the jury are also to consider the condition of the plaintiff's horse before the injury complained of, as compared with the condition of said horse since, and in consequence of such injury, and to allow the plaintiff such damages as in the opinion of the jury said horse may have sustained.

And the defendant offered three prayers, of which only the following was considered by this court:

1. If the jury find from the evidence in the cause that the Chesapeake and Ohio Canal Company, at or about the time of the completion of its canal, in 1851, severed and destroyed the public road leading from Cumberland to the ford in the Potomac river, near Patterson's creek, by cutting said canal through or across said road, then said Canal Company was bound to reconstruct and keep open said highway for the benefit of the public; and if the jury shall further find that the said Canal Company, in obedience to its said obligation, did construct a bridge at said point at or about the time of the completion of said canal, in 1852, and has ever since maintained and kept up said bridge at its own proper charge and expense, through the supervision of its own officers or superintendents; and if the jury shall further believe, that the defendant never, at any time since said bridge became a necessity, has had charge or supervision of the same, or has been called upon to make or has made any levy or appropriation for its repair, then the plaintiff is not entitled to recover against the defendant, even though the jury shall further find that the injury complained of was the result of the defective condition of said bridge so constructed and kept in repair by the said Canal Company.

The court rejected the plaintiff's prayers, and the second and third prayers of the defendant, but granted its first prayer. To the rejection of his prayers, and to the granting of the defendant's first prayer, the plaintiff excepted and the verdict and judgment being against him, he took this appeal.

This action was originally brought in the Circuit Court for Allegany County, but was afterwards removed to Washington County, at the suggestion of the appellant.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, JJ., for the appellee, and leave was given to the appellant to file notes.

William Brace and Benj. A. Richmond, for the appellant.

The liability of County Commissioners for accidents happening by reason of the defective condition of county roads and bridges, is well settled in this State. Comm'rs v Duckett, 20 Md. 468; Comm'rs v. Gibson, 36 Md. 229; Comm'rs v. Baker, 44 Md. 1.

Is there anything in the facts of this case to destroy this liability? It is said that because the portion of the highway on which the accident occurred, is a bridge crossing the canal, the Commissioners are relieved from responsibility and that it rests alone on the Chesapeake and Ohio Canal Company. The appellant contends that, admitting the liability of the company, there is a concurrent liability on the appellee.

The road in question was in existence before the building of the canal, and in 1852, the road was severed and the bridge built by the Canal Company. By the Act of 1853, ch. 239, all county roads and bridges were placed under the control of the County Commissioners. This bridge was then in existence, and even though it had been built by the Canal Company, it was built for the benefit of the public and not for its own use--was part of a public highway and must have been subject to the operation of the Act of 1853. If it was a county bridge, then it became the duty of the Commissioners to see that it was kept in proper repair, and they are responsible for its defective condition. If it was not a county bridge, then it is difficult to conceive what elements are necessary to make it such.

The appellee assumes that the legislation in regard to the canal took away from the Commissioners their authority over this bridge--the fallacy of which argument is, that all legislation imposing upon the Commissioners the duty of taking charge of roads and bridges, is of subsequent date to the charter of the canal and to the building of the bridge, and to the decision in Leopard's Case, 1 Gill, 222.

Even admitting that prior to the Act of 1853, the Canal Company alone had charge and control of the bridge, still it was competent for the Legislature to take away such control and vest it in the Commissioners. This was not taking private property, because the bridge was clearly public property, built by the Canal Company for the benefit of the public and in discharge of a duty toward the public. The Legislature must have intended by the Act of 1853, to place in the control of the Commissioners all roads and bridges which were public highways. This bridge constitutes no part of the canal, is not in any manner advantageous or beneficial to the canal, but was built and maintained solely for the purpose of restoring a public road severed by the canal, and being no part of the highway of the canal, must be part of the public highway.

Admitting further that there was a duty resting on the Canal Company to maintain and repair the bridge, was it not also the duty of the Commissioners to enforce and require the Canal Company to perform such duty?

If the bridge in question is included in the language of the Act of 1853, then it is immaterial whether the Commissioners ever, in fact, assumed charge of the bridge or not. The duty to do so was imperative and not discretionary. Comm'rs v. Duckett, 20 Md. 468, 477.

The liability of County Commissioners is placed upon the same grounds as that of municipal corporations. Comm'rs v. Duckett, 20 Md. 468, 477. These corporations are liable where the highway is injured or obstructed by natural causes. Balto. v. Marriott, 9 Md. 160; Flynn v. Canton Co. 40 Md. 312. They are equally liable where the act is done by one who has lawful authority to use the highway, but does so in a negligent manner. Balto. v. Pendleton, 15 Md. 12. There may be a concurrent responsibility. Comm'rs v. Gibson, 36 Md. 229. The primary liability to the person injured is upon the county, town or municipal corporation invested by statute with the control of highways. Shearman & Redfield on Neg. secs. 176, 357, 377, 393, and notes 2 and 3 on page 176; Wharton on Negligence, sec. 969; Dillon on Municipal Corp. 927; Currier v. Lowell, 16 Pick. 170; Lowell v. R. R. Co. 23 Pick. 24; 1 Redfield on Railways, secs. 538-542; Robbins v. Chicago, 2 Black, 559, and 4 Wall. 657.

If the County Commissioners had control of this bridge, then there can be no doubt of their liability; and if the Act of 1853 did not give them such control, then every railroad or canal crossing a public road in the State is outside of and beyond the control and supervision of the civil authorities.

S. A. Cox, for the appellee.

The only question to be determined under the first exception is whether the evidence offered by the appellee was admissible under the plea of not guilty. The evidence was properly admitted. Under a plea of not...