Kirtley v. Spokane County

• Decision Date: 24 October 1898
• Citation: 20 Wash. 111,54 P. 936
• Parties: KIRTLEY v. COUNTY OF SPOKANE.
• Court: Washington Supreme Court

54 P. 936

20 Wash. 111

KIRTLEY v. COUNTY OF SPOKANE.

Supreme Court of Washington

October 24, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by Calvin Kirtley against the county of Spokane. Judgment was for plaintiff, and defendant appeals. Affirmed.

John A Pierce, Pros. Atty., and Harris Baldwin, for appellant.

John M Gleeson and John H. Roche, for respondent.

REAVIS, J.

Action by respondent to recover damages against Spokane county appellant, for injuries sustained from the falling of a defective bridge, which was a part of one of the highways of the county. The bridge fell while the respondent, with his wagon and team, was crossing it. The judgment was for respondent, and the county appeals.

But a single question is presented on the appeal; that is, whether the county is liable for injuries sustained by reason of a defective county road or bridge. Counsel for appellant maintain that the controversy is settled against the contention of respondent in the case of Clark v. Lincoln Co., 1 Wash. St. 518, 20 P. 576, which was a decision of the territorial supreme court in 1889. That was a case brought for personal injuries sustained by the plaintiff in traveling on a defective sidewalk. Demurrer to the complaint was sustained, and the court there determined that no cause of action existed against a county for the injuries sustained. It will be observed, upon consideration of the decision, that the court had in view the common-law liability of a county, and the authorities mentioned by the court were in support of that proposition. The opinion concludes that "While some courts in this country seem inclined to hold the right to bring suits of this character, the courts in England are wholly against the right, and the great majority of our states having similar provisions in their statutes to our own are against it." At the time this decision was rendered, and long prior thereto, the following statute was in force: "An action may be maintained against a county or other of the public corporations mentioned or described in the preceding section, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation." Ballinger's Code, § 5674 (2 Hill's Code, § 672). Counsel for appellant maintain that the territorial supreme court construed this statute, but there is no discussion of the statute, and no mention of it, specifically, in the opinion, while there is a general allusion to our statutes. In view of the importance of the right of action given against counties in the statute quoted, it is reasonable to presume that the attention of the court was not especially directed to it. In this state the right to recover for damages sustained by reason of negligence of municipal corporations in failure to repair streets has been uniformly recognized. Such municipal corporations are by law authorized to construct streets, bridges, and sidewalks, and the duty of maintenance is imposed upon the corporation, and for a breach of this duty they are liable to any one injured. The county commissioners by law are authorized to manage, supervise, and control the public highways and bridges of the county, to collect taxes for road and bridge purposes, and to maintain and repair them. Laws 1893, p. 147, § 1; Id. p. 149,§ 3; Id. p. 151, § 6; Laws 1895, p. 419, § 1; Id. p. 424. The duty is expressly imposed on the county to keep bridges in repair, with power to perform such duties. 1 Hill's Code, §§ 2068, 2070; Seanor v. Commissioners, 13 Wash. 48, 42 P. 552. It would seem that no distinction on principle can be made between the liability of a municipal corporation, a town, or city and that of the county for defective bridges; but, as observed in Clark v. Lincoln Co., supra, while there is some conflict of authority at common law as to whether a county is liable for failure to repair, the decided weight of authority is against the right. 1 Thomp. Neg. § 616, and cases cited; Dill. Mun. Corp. § 785. And Judge Cooley, in his work on Torts (page 622), states that "at the common law a municipal corporation is not liable to an individual for neglect to keep a highway in repair, whereby he suffers an injury in using it." The leading case exempting counties from such liability, and upon which the cases in this country seem to be based, is Russell v. Men of Devon, 2 Term R. 667. This was an action brought against the inhabitants of the county of Devon for injuries sustained in consequence of a county bridge being out of repair. Two of the inhabitants, for themselves and others in the county, appeared, and demurred generally. The demurrer was sustained. The reasons...