Rapho v. Moore

• Decision Date: 09 October 1871
• Citation: 68 Pa. 404
• Parties: Rapho and West Hempfield Townships <I>versus</I> Moore.
• Court: Pennsylvania Supreme Court

68 Pa. 404

Rapho and West Hempfield Townships versus Moore.

Supreme Court of Pennsylvania.

May 2, 1871.

October 9, 1871.

May 2d 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Lancaster county: No. 56, to May Term 1869.

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N. Ellmaker, for plaintiff in error, cited Reeves v. Del., Lack. & W. Railroad Co., 6 Casey 465; Pittsburg v. Grier, 10 Harris 54.

A. H. Smith, for defendant in error, cited Erie v. Schwingle, 10 Harris 388; Humphreys v. Armstrong, 6 P. F. Smith 204.

The opinion of the court was delivered, October 9th 1871, by AGNEW, J.

But two questions need to be noticed in this case — the duty of repair and the liability of the townships for latent defects. Without a duty of repair no liability rests on the municipality. As a general proposition, but by no means universal, bridges are treated as portions of the highways which cross them, and are to be maintained by the same persons to whom the duty of repairing the highways is committed: Shear. & Red. on Negligence, § 248. In this state the duty is statutory, and therefore we must look to the statute for its nature and extent. The 6th section of the Act of 13th June 1836 requires public roads or highways to be effectually opened and constantly kept in repair, and at all seasons to be kept clear of all impediments to easy and convenient passing and travelling, at the expense of the respective townships, as the law shall direct. By the 10th section those laid out on a line which divides two townships shall be opened and kept clear and in repair at the joint and equal charge of such townships. The 27th and following sections require these duties to be performed through supervisors, to whom large powers are given for the purpose: Brightly 875, pl. 41, 42, 43, &c. Coming to the 34th section, it is provided that where a small creek over which a bridge may be necessary shall be the boundary, or on the division line of townships, the bridge shall be built and maintained at the joint and equal expense of said townships, by their respective supervisors, in the manner directed by law in the case of public roads, which may be the division line of the townships: Brightly 822, pl. 56. Thus it is clear that by law the primary duty of maintaining and repairing the bridge in question lay on the townships defendants jointly; the stream over which it was built being on the division line between them. For this purpose the supervisors of roads of the respective townships were the agents constituted by law; and it is equally clear that the personal liability of the supervisors, for their neglect to perform this duty, does not lessen the primary liability of the townships to those who suffer injury from their neglect. These principles will be found to be fully supported by the following cases: Dean v. New Milford Tp., 5 W. & S. 545; Erie City v. Schwingle, 10 Harris 385; Pittsburg v. Grier, Id. 54; Humphreys v. Armstrong Co., 6 P. F. Smith 204; Penna. and Ohio Canal Co. v. Graham, 13 Id. 290; Meadville v. Erie Canal Co., 6 Harris 66. That an action on the case will lie at the suit of a party who has suffered a special injury, as in this case, is also shown by the same authorities.

But it is contended that the defect in this bridge being latent, no liability can be imputed to the townships until it is shown that notice of the defect was given to the supervisors in whose charge the bridge lay. This is the chief question, and is not without difficulty. The defect here was the inward rottenness of the timbers which constitute the main strength and chief support of the bridge. It was not outwardly visible, one of the supervisors having inspected the timbers outwardly a short time before it fell. But the evidence shows that the bridge had been erected and stood...