Hollingsworth v. Saunders Cnty.

• Citation: 36 Neb. 141,54 N.W. 79
• Parties: HOLLINGSWORTH v. SAUNDERS COUNTY.
• Decision Date: 18 January 1893
• Court: Nebraska Supreme Court

36 Neb. 141

54 N.W. 79

HOLLINGSWORTH

v.SAUNDERS COUNTY.

Supreme Court of Nebraska.

Jan. 18, 1893.

Syllabus by the Court.

1. Where a county board negligently fails to keep a public bridge in suitable repair so as to be in a safe condition for travel, and damages have been occasioned by reason thereof, under the act of the legislature of 1889 the county is liable therefor to the person sustaining the damages, unless he has been guilty of contributory negligence.

2. The person sustaining the damages may maintain an original action against the county whose duty it was to keep the bridge in repair. He is not required to present his claims for damages to the county board for allowance or rejection, since the provisions of section 37, c. 18, Comp. St. 1889, do not apply to demands arising upon torts.

Error to district court, Saunders county; Marshall, Judge.

Action by William F. Hollingsworth against the county of Saunders to recover damages sustained by reason of a defective bridge. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.

Geo. I. Wright, for plaintiff in error.

B. F. Hines and G. W. Simpson, for defendant in error.

NORVAL, J.

This action was brought by plaintiff in error against the county, alleging in his petition: “First. That the defendant is a county duly organized under and by virtue of the laws of the state of Nebraska, and is not under township organization. Second. That on, and for some time prior to, the 15th day of August, 1889, a certain bridge on and belonging to, and forming a part of, the public road which lies and runs north and south between sections 32 and 33, in township 14, range 8, in Wahoo precinct in said county of Saunders and state of Nebraska, which road was a public road and highway, and was much traveled and used by the citizens of said county and by the public generally, was out of repair, and dangerous to the public travel, and one of the main posts which supported the bridge was gone from under it, and the approach to the bridge from the north side thereof had been washed away in such manner as to become and be in a dangerous condition, and that at the said time the said condition of the said approach was covered up by planks so as not to be observable to a person traveling in a wagon; and that the said bridge was at said time, and for some prior thereto had been, dangerous to pass over with ordinary loads or travel,--of all of which the defendant had due notice. Third. That on the 15th day of August, 1889, and for some time prior thereto, said bridge was allowed to be and remain exposed to public travel, without guards or notice to prevent the public from passing or traveling over the same. Fourth. That during the afternoon of the 15th day of August, 1889, this plaintiff with his said team of horses, attached to a lumber wagon loaded with fifty bushels of oats therein, was passing along the said public road from the south going north, and the plaintiff drove his team upon the said bridge, intending to cross the same; but while lawfully traveling on said road and bridge, and accidentally and without fault on his part, because of the said post being gone from under the said bridge and the condition of said bridge, this plaintiff, his team, harness, wagon, and oats were precipitated from the said bridge to the ground and water under the said bridge. Fifth. That by reason of the premises the plaintiff was damaged in the sum of $400 to the horses, wagon, harness, and oats. Sixth. That this plaintiff was not familiar with said road; he not having passed over it for many months preceding the time of the injury complained of herein. Seventh. That the defendant had the means of knowledge of the condition of the said bridge at the said time, and had failed to repair the same, after having had a reasonable time to do so; and that the damage to plaintiff's property was caused by the said bridge not being in sufficient repair, the said bridge being one which the said defendant was liable to keep in repair. Wherefore the plaintiff prays for judgment for $400, and costs.” The district court sustained a general demurrer to the petition, and dismissed the action.

In Woods v. Colfax Co., 10 Neb. 552, 7 N. W. Rep. 269, it was decided that neither at common law, nor under the statutes of this state as then existing, was a county liable for damages occasioned by the negligence of the county board in failing to keep a public bridge in suitable repair and safe condition for travel. It is perfectly plain that a county is not liable for the acts or negligence of its officers unless made so by legislative enactment. The question, therefore, presented by the record before us, is, whether or not, under the statute in force at the time of the injury complained of, a county is liable for damages sustained by an individual in consequence of its failure to keep in safe repair a public bridge. The legislature of 1889 enacted a law which took effect July 1, 1889, entitled “An act relating to highways and bridges, and liabilities of counties for not keeping the same in repair.” Laws 1889, c. 7; Comp. St. 1891, p. 733. By section 4 of said act it is provided that “if special damage happens to any person, his team, carriage, or other property, by means of insufficiency or want of repairs of a...