Hathaway v. Hinton
| Decision Date | 31 December 1853 |
| Citation | 1 Jones 243,46 N.C. 243 |
| Court | North Carolina Supreme Court |
| Parties | MARK D. HATHAWAY ET. AL. v. JOHN M. HINTON. |
An overseer of a public road is civilly liable for SPECIAL damages, for injuries arising from the road's being out of repair.
ACTION on the case to recover damages for an injury to a stage coach and horses, occasioned by the breaking down of a bridge, which defendant was bound to repair, tried before his Honor Judge ELLIS, at Fall Term, 1853, of Pasquotank Superior Court.
The defendant was the overseer of a public road, leading from Elizabeth City to Norfolk, in Virginia, and was duly notified of his appointment. The bridge in question was a part of the public road, and had been recognized as such for three years, and had been taken in charge by the previous overseers of the road, and repaired from time to time, by the hands under them. This bridge was supported by three sills: it was old and decayed, and the middle sill had been broken for a considerable time before the occurrence complained of, and a pole put by the side of it; the covering was old and much worn. The defendant had had his attention called to the condition of the bridge, by one of his neighbors, a few days before, and said he was going to have it repaired on the next day, but failed to take any measures towards repairing it. This was the state of the bridge, as proved by two witnesses, Ghirkin and Richardson. While in this condition, the plaintiff's coach and horses were passing over it, when one of the side sills, which was decayed, broke, the bridge sank down, and the horses, becoming affrighted, broke from the stage and ran off; one of them was injured, and for a while unable to work. There was a damage to the coach and harness, and for these injuries to the horses, coach and harness, the plaintiff claimed damages. The defendant insisted that he was entitled to fifteen days time after the sill broke to repair the bridge, or at least to three days after the accident occurred, and he showed that within that time he did put the bridge in good and sufficient repair. The Court charged the jury that as overseer of the road, the defendant was bound to use such reasonable diligence in keeping it in repair, as a prudent man would use in transacting his own business; that the bridge was a part of his road, and he was required to make an examination of its condition from time to time, and make all needful repairs; that upon hearing of any sudden injury thereto, he was allowed three days, within which to summon his hands, but was not required to make the repair himself.
Verdict for the defendant. Rule for a venire de novo for misdirection in the Court. Rule discharged, judgment and appeal.
Smith, for plaintiff .
Heath and Pool, for defendant .
*2 The general liability of an overseer for any peculiar and special damages, sustained by an individual in consequence of the failure of such overseer to keep his road in repair, seems not to have been questioned on the trial. The contrary proposition has been suggested in the argument here, but we think without sufficient grounds for its support. The State, as the sovereign power, undoubtedly has the right to command the services of each and every one of her citizens, in whatever employments she may deem necessary for the promotion of her safety, or her welfare, for which he may be physically or morally qualified. In many of her offices, or places of trust, or profit, the distinction conferred, or the emolument received, are found to be amply sufficient to secure the risk of responsibility however great, and the performance of labors however arduous. But there are other offices and places essentially necessary, in her economy, and police, in which the duty to be discharged is more useful to the public than profitable to the incumbent, where the State is compelled to resort to coercive measures, and by fines and penalties to enforce their fulfilment,--such, as in procuring the attendance of jurors to assist in the administration of justice, and such also is the case in securing the oversight of her citizens, in making and keeping in repair her public roads and bridges.
By the 8th section, 104th chapter, of the Revised Statutes, power is conferred upon the County Courts of the several counties of the State to appoint overseers of the highways, each of whom shall serve,...
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Coley v. North Carolina R. Co.
... ... of it if left to them, as they appear to have done in the ... case at bar. Avera v. Sexton, 35 N.C. 247; Hathaway ... [40 S.E. 198] ... v. Hinton, 46 N.C. 243; State v. Allen, 48 N.C. 257; ... Abernathy v. Stowe, 92 N.C. 213; Gibbs v ... Lyon, 95 ... ...
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... ... construed in the light most favorable for him. Avera v ... Sexton, 35, N.C. 247; Hathaway v. Hinton, 46 ... N.C. 243; State v. Allen, 48 N.C. 257; Abernathy ... v. Stowe, 92 N.C. 213; Gibbs v. Lyon, 95 N.C ... 146; Springs v. Schenck, ... ...
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Asheville Const. Co. v. Southern Ry. Co.
...S.) 1046. Indeed, it is hardly too much to say that 70 years ago the Supreme Court of North Carolina laid down the same rule. In Hathaway v. Hinton, 46 N. C. 243, an overseer of roads was held personally liable to one who had suffered from his neglect of official duty. * * * The presumption......