CHAPTER XII. DUTY OF PUBLIC AUTHORITIES IN REPAIRING ROADS. I. General grounds of liability. Distinction between New England towns and municipal corporations, § 956. Liability of New England towns, § 957. Distinctive duty of cities, § 959. When repairing is discretionary no action lies, § 959 a. II. Limits of liability, § 960. Liability not to extend beyond duty, § 961. Not bound to repair latent defects ex cept upon notice, § 962. And so as to defects caused by casus or interference of third parties, § 963. Notice to agents of corporation is notice to corporation, § 967. Defects out of beaten track of road, 968. Railroad crossings and interferences, $969. Crowds of idlers, § 970. Coasting on sleds; wagons on road, § 971. Unskilful grading, § 972. Defective lights during repairs and at Snow falling from roof; signs, awnings, § 982. Objects calculated to frighten horses; horse injuring master, § 983. Unaccountable fright of road-worthy horses, § 984. Unfitness of horse, § 985. Where plaintiff is injured by jumping from carriage in fright, § 986. Latent defectiveness of wagon or harness, § 987. Road to be constructed on the best plan practicable under the circumstances, § 988. "Safety and conveniency" of the road mixed questions of law and fact, § 989. Burden of proof, § 990. "Travellers" only are within the benefit of statutes, not occupiers of houses or loiterers, § 991. Sidewalks, § 992. Horse hitched and breaking loose, § 993. Special damage necessary to entitle plaintiff to recover, § 994. When plaintiff was at the time violating law, § 995. Roads are to be made fit for the infirm as well as for the strong and capable, § 996. No defence that the plaintiff could have taken another road, § 997. Inevitable accident as a defence, § 998. Intervening negligence of third party, § 999. Individual liability of officers, § 1000. I. GENERAL GROUNDS OF LIABILITY. § 956. Distinction between New England towns and municipal corporations. Towns liable when made so by statute; municipal corporations by acceptance of power. The question of the liability of towns and municipal corporations for negligence in making and repairing roads is one which, for several reasons, it is impos sible to discuss with systematic accuracy. We have a great mass of adjudications before us when we proceed to enter on this investigation, but when we scrutinize these adjudications we find that they fall into three distinct classes, two of which, at least, are liable to minute subdivision. Out of New England, the States of the American Union, with but few exceptions,1 vest in special officers the duty of maintaining country roads; while as to cities it is held that when a city or other municipal corporation accepts a charter, investing it with the charge of the highways within its borders, it becomes liable, on common law principles, for negligence in the discharge of this duty.2 As to municipal corpora 1 Wisconsin may be conspicuously noticed, having adopted the New England system. 2 No doubt an indictment lies against a municipal corporation for defective discharge of the duty imposed upon it by statute of keeping roads in good condition. It is true, that when there is no compensation or benefit for the duty received by the municipal corporation, it is not liable to a private action for omission or neglect to perform a corporate duty imposed by a general law on all towns and cities alike. Oliver v. City of Worcester, 102 Mass. 490; citing Providence v. Clapp, 17 How. 161167; Riddle v. Prop. of Locks & Canals, 7 Mass. 169; Mower v. Leicester, 9 Mass. 247; Brady v. Lowell, 3 Cush. 121. The law in this relation is thus stated by Clifford, J., in a late case in the supreme court of the United States. Water Co. v. Ware, 16 Wall. 566: "Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travellers, and if they neglect so to do, in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person, as a traveller, receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want of repair in the highway; but he must also allege and prove that the corporation had notice of the defect or want of repair, and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public; and consequently, if one person might sue for his proportion of the damages for the non-performance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation, and for that reason it was held, at common law, that no action, founded merely on the neglect to repair, would lie. Weightman v. Washington, 1 Black, 52. "Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also tions, therefore, to which this common principle applies, it is possible to approach a uniform system. It is otherwise, however, when we come to the statutory liability imposed on supervisors of roads and county commissioners, for here the legislation of each state not only shifts from year to year, but is often special for particular counties. § 957. Liability of New England towns. - In New England a new factor, requiring independent treatment, is introduced by the town system, it being held by the New England courts that the that the place in question is out of repair, and that the plaintiff has sustained some peculiar damage in his person or property, by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Since the decision in Mayor of Lyme-Regis v. Henley, the case last referred to, many decisions to the same effect have been made by the state courts in this country approving that rule and applying it in all similar controversies." In New York it is well settled that, in the case of a village or city where the trustees, or common council, are made commissioners of highways, the corporation is liable for its negli gence in not keeping the streets and sidewalks, within its corporate limits, in a condition safe for the use of passengers thereon. Mosey v. The City of Troy, 61 Barb. 580. The negative, however, has been held in New Jersey. Sussex v. Strader, 3 Harr. (18 N. J.) 108; Cooley v. Essex, 27 N. J. 415; Livermore v. Camden, 29 N. J. 242; 2 Vroom 1 Henly . The Mayor, &c. of Lyme, 5 Bing. 91; The Mayor v. Henly, 3 Barnewall & Adolphus, 77; Mayor, &c. of LymeRegis v. Henly, 2 Clark & Finnelly, 331. 2 Hutson v. New York, 5 Sandford, 304; (31 N. J.), 507; Pray v. Jersey City, 32 N. J. 394. In the latter case it was ruled that an action will not lie in behalf of an individual who has sustained special damage from the neglect of a public corporation to perform a public duty. Consequently the plaintiff's horse having, by accident, come in contact with an obstacle in one of the streets of Jersey City, which obstacle would not have existed but for the neglect of the corporate officers to fill in such street to the proper grade, it was held that a civil action would not lie against the city for the damages thus sustained. The case of Strader v. Freeholders of Sussex, 3 Harr. 108, reaffirmed. So in Michigan, Dermont v. Detroit, 4 Mich. 435; Detroit v. Blackby, 21 Mich. 84, Cooley, J., dissenting. It was, however, agreed by Cooley, J., that “a municipal corporation is not liable to an individual damnified by the exercise, or the failure to exercise, a legislative authority; and the political divisions of the states, which have duties imposed on them by general law without their assent, are not liable to respond to individuals in damages for their neglect, unless expressly made so by statute." Erie v. Schwingle, 22 Pennsylvania State, towns have no common law duty imposed on them1 to maintain highways, and the New England legislatures having passed statutes making this the duty of the towns, and imposing on them a liability for damages arising from a defective discharge of this duty. Here, however, a fresh distracting agent arrests us, for while the statutes imposing this liability are, at first sight, alike, they exhibit shades of difference which are the constant source of judicial divergence. Without giving the distinctive features of these statutes it is impossible to show how far the decisions on them are exacted by local legislation, and how far they may be viewed as touching the question of the general liability of the road-makers for defects. Yet thus to analyze these statutes would require the labor and the space of an independent treatise. § 958. It is true that there are certain leading expressions in those statutes which will be forced upon our notice by the constant adjudications of which they have been the subjects. Thus, for instance, in Massachusetts, the town is required to keep its roads "in repair," so that the same may be made "safe and convenient for travellers with their horses, teams, and carriages, at all seasons of the year," and the test "safe and convenient " is introduced into the statutes of other states. In Connecticut, the repair the towns are required to make must be "good and sufficient." In Vermont, the town is liable for special damage to the traveller "by means of the insufficiency or want of repairs' of the roads the town is required to keep; while New Hampshire declares that the liability of the town is to the traveller for damages happening "by reason of any obstructions, defect, insufficiency, or want of repair, which renders it (the road) unsuitable for the travel thereon." Prominent peculiarities such as those demand our consideration; but beyond this, so far as concerns the special interpretation of the statutes, we cannot in this treatise proceed. § 959. Distinctive duty of cities. The task, in reference to cities and other municipal corporations, is far simpler. The law is that the city, undertaking the task of road-repairing, is bound to due diligence in the task, and as to what due diligence is, the leading maxims of the law of negligence enable us to reach a satisfactory conclusion. But even as to municipal corporations, there are so many local variations in the powers and duties pre1 See supra, § 266. scribed by charter, that we are sometimes baffled, at the moment when we think we are reaching a decision based on the common law, by finding that the court is directed in its opinion by statutory provisions which makes the decision valuable simply as a matter of statutory exegesis. Under such circumstances, the best we can do is to group the adjudications before us under certain obvious titles, reserving to other investigators, undertaking distinct treatises, the task of connecting each decision with the local legislation from which it springs. At the same time, we must accept it as a settled and fundamental doctrine that where a municipal corporation is vested, under the provisions of a charter granted at the request of its citizens, with the charge of roads, and accepts the charter, it is liable to parties injured for negligence in the defective construction or repair of such roads.1 The general characteristics of this liability have been already examined. 1 Bill v. Norwich, 39 Conn. 222; Jones v. New Haven, 32 Conn. 1; Bigelow v. Randolph, 14 Gray, 541; Eastman v. Meredith, 36 N. H. 284; Hutson v. New York, 9 N. Y. 163; Hines v. Lockport, 5 Lansing, 16; Heiskill v. Penn Yan, 5 Lansing, 43; West v. Rockport, 16 N. Y., note, 161; Conrad v. Ithaca, 16 N. Y. 158; Storrs v. Utica, 17 N. Y. 104; Mills v. Brooklyn, 32 N. Y. 489; Lee v. Sandyhill, 40 N. Y. 442; Requa v. City of Rochester, 45 N. Y. (6 Hand) 129; Bush v. Trustees, 3 N. Y. Supreme Ct. 409; Deyoe v. Saratoga, 3 N. Y. Supreme Ct. 504; Pittsburg v. Grier, 22 Penn. St. 63; Erie v. Schwingle, 22 Penn. St. 388; Lower Merion v. Merkhoffer, 71 Penn. St. 276; Allentown v. Kramer, 73 Penn. St. 406; Stackhouse v. Lafayette, 26 Ind. 17; McCalla v. Multnomah County, 3 Oregon, 424; Browning v. Springfield, 17 Ill. 143; Bloomington v. Bay, 42 Ill. 503; Springfield v. Le Claire, 49 Ill. 476; Sterling v. Thomas, 60 Ill. 264; Rockford v. Hildebrand, 61 Ill. 155; Meares v. Wilmington, 9 Ired. 73; Shartle v. Minneapolis, 17 Minn. 308; Smoot v. Wetumpka, 24 Ala. 112; Cook v. Milwaukee, 24 Wisc. 270; Weightman v. Washington, 1 Black, 39; Supervisors v. C. S. 4 Wall. 435; Mayor v. Sheffield, 4 Wall. 190; Thurston v. St. Joseph, 51 Mo. 510; Johnston v. Charleston, 3 Richards. 232. In England a common law liability, enforcible by indictment, rests on the parishes. See R. v. Ecclesfield, 1 B. & A. 348; R. v. Eastington, 5 A. & E. 765; R. v. Oxfordshire, 4 B. & C. 194. No liability arises against a vestry for a defective repairing, though the vestry is empowered by law to make the repairs. Parsons v. Vestry, &c., Law R. 3 C. P. 56. No action lies against a local board under the public health acts for damage done to an individual through their neglect in repairing a parish road placed by those acts under their management, the ground of the decision being that the duty of repairing was left to the discretion of the board. Gibson v. Mayor of Preston, L. R. 5 Q. B. 218; affirming Wilson v. The |