II. LIMITS OF LIABILITY. § 960. When the repairing of a road is left to the discretion of the corporation, no action ordinarily lies for non-exercise of the power. This has been already incidentally noticed,1 and there can be no question that when an officer of government is left with discretionary powers, he is not liable to an individual for damages arising from his honest refusal to act.2 When, however, the work is undertaken, it must be done in a workman-like and suitable manner.3 § 961. Liability not to extend beyond duty. Where also the duty is limited, the liability is only to do what the duty prescribes. Thus where the statutory duty is simply to put a road in order, and this is done, the parties thus charged cease to be Mayor and Corporation of Halifax (L. R. 3 Ex. 114; 37 L. J. Ex. 44), where it was held, that the 68th section of the Public Health Act, 1848, which vests the management in the local board for the district, and enacts that "they shall, from time to time, cause the streets to be repaired, and may, from time to time, cause the soil thereof to be raised or lowered, and place and keep in repair fences and posts for the safety of foot-passengers,” does not make it obligatory on the board to place posts or rails by the side of ancient foot-paths where none have existed before. In giving judgment in the case, of Wilson v. Mayor, Kelley, C. B., said: "The cause of action alleged in the second count is that the defendants had wrongfully neglected to fence off for protection of passengers the footway near the goit, and that thereby the deceased met his death. The 68th section vests all the streets, being highways, in the local board, who are in this case the defendants, and enacts that they shall, from time to time, cause the same to be repaired, and that they may, from time to time, cause the soil of the streets to be 1 See supra, § 260; Gibson v. Mayor, L. R. 5 Q. B. 218; Wilson v. Mayor, L. R. 3 Ex. 111. 2 See supra, § 285-6. 8 Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Wheeler v. Worcester, 11 Allen, 604; and cases hereinafter cited, infra, § 988. liable for subsequent mischief to the road arising from subsidence of the soil.1 § 962. Not bound to repair latent defects except upon notice either actual or constructive. To expect a municipal corporation to be cognizant of latent defects, when it has taken due care in the construction of a road, would exact from it a greater diligence than that required from common carriers, and would revive the extinct culpa levissima of the Schoolmen. Hence, if a road be properly constructed, a municipal corporation is not liable for a latent defect of which it had no notice.2 So in Vermont it has been ruled 3 that when a sudden and unforeseen defect occurs in a highway, without fault on the part of the town, such town is not chargeable for the damages resulting from such defect, unless it has been in default in respect to getting seasonable knowledge of the defect, or unless, having such knowledge, it was reasonably practicable to have repaired the defect, or put up a warning or barrier to avoid it, before the happening of the accident.1 1 Hyams v. Webster, L. R. 2 Q. B. 264; affirmed in Exch. Ch. L. R. 4 Q. B. 138. For suits under Connecticut statute against municipal corporations, for negligence in management and repair of road, see Bill v. City of Norwich, 39 Conn. 222; Young v. City of New Haven, 39 Conn. 435. 2 Rapho v. Moore, 68 Pa. St. 404. In this case, Agnew, J., said, after affirming the above principle: "But what is negligence is itself a question in each case, and must always depend on its peculiar circumstances. Great danger demands bigher vigilance and more efficient means to secure safety; where the peril is small, less will suffice.' F. & B. Turnpike Co. v. Phila. & Trent. Railroad Co. 4 P. F. Smith, 350. The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable such care must be required as, it is shown, is ordinarily sufficient under similar circumstances, to avoid the danger and secure the safety needed.'" See, however, McCarthy r. Mayor of Syr. 36 N.Y. (1 Sick.) 194; Requa v. City of Rochester, 45 N. Y. (6 Hand) 129. 8 Ozier v. Hinesburg, 44 Vt. 220. 4 In Doulon v. The City of Clinton, 13 Iowa, 399, the cases are thus recapitulated by Miller, J.: . . . . “Before the defendant can be held guilty of negligence, on account of defects in the sidewalks (not arising from their original construction), or from an obstruction placed thereon by a wrongdoer, either express notice of the existence of the defect or obstruction must be brought home to it, or they must be so notorious as to be observable by all. Mayor, &c. of N. Y. v. Sheffield, 4 Wall. 189; Griffin v. Mayor et al. of N. Y. 9 N. Y. 456; Vandyke v. Cincinnati, 1 Disney, 532; Howe v. Plainfield, 41 N. H. 135; Bardwell v. Jamaica, 15 Vt. 438; Prindle r. Fletcher, 39 Ill. 255; Lobdell r. New Bedford, 1 Mass. 153; Reed v. Northfield, 13 Pick. 94; Bigelow v. Weston, § 963. Not bound to remove defects caused by accident or by third parties, except upon notice actual or constructive. This rests on the same principles as the point last stated. There must be notice, and a reasonable time to remedy, to impose liability. Lapse of time, however, at common law, supplies such notice, for, after a reasonable time has elapsed, it is negligence on the part of the corporation not to know of the defect when patent; and for such negligence suit lies.2 But no mere inci 3 Ill. 267; Manchester v. Hartford, 30 Conn. 118; McGinity v. Mayor, &c. of N. Y. 5 Duer, 674; Dewey v. Detroit, 15 Mich. 307; Montgomery v. Gilmar, 33 Ala. (N. S.) 116; Hart v. Brooklyn, 36 Barb. 226; Shearman & Redfield on Negligence, § 407, 408, 146; Hutson v. The Mayor, &c. of N. Y. 9 N. Y. 163; Mayor, &c. of N. Y. v. Furze, 3 Hill, 612; Goodnough v. Oshkosh, 24 Wis. 549." In Pennsylvania, however, in a case where the plaintiff, whilst loading his cart, was injured by the falling of a pole in the street, erected by citizens years before, the pole having become rotten, it was held that it was the duty of the town to have had the pole removed, and they were liable for the injury to the plaintiff, whether the neglect was wilful or not. It was further held, that it was not necessary that the town should have had notice of the condition of the pole; and that it was not material that the pole was in such part of the road as not to obstruct the travel. Norristown v. Moyer, 67 Pa. St. 355. 1 See Rapho v. Moore, 68 Penn. St. 404; Rowell v. Williams, 29 Iowa, 210; Atchison v. King, 9 Kansas, 550; Hardy v. Keene, 52 N. H. 370; Fahey. Howard, 62 Ill. 28. 2 Horn v. Barkhoof, 44 N. Y. 113; Manchester v. Hartford, 30 Conn. 118; Requa v. City of Rochester, 45 N. Y. 129; Hume v. Mayor of N. Y. 47 N. Y. (2 Sick.) 639; Holt v. Penobscot, 56 Me. 15; Colley r. Westbrook, 57 Me. 181; Reed v. Northfield, 13 Pick. 94; Moore v. Minneapolis, 19 Minn. 300; Howe v. Plainfield, 41 N. H. 135; Prindle v. Fletcher, 39 Vt. 255; City of Chicago v. Robbins, 2 Black, 418; S. C. 4 Wal. 651; Bill v. City of Norwich, 39 Conn. 222; Market v. City of St. Louis, Cent. Law J. Ap. 30, 1874. Thus in Mayor v. Sheffield, 4 Wall. 189, the evidence was that the city of New York, in converting a portion of a park into a street, had cut down a' tree and left the stump standing from six to eight inches above the surface, and from fourteen to eighteen inches inside the curbstone on the sidewalk. This was done in 1847, and the stump thus left by the city authorities, who had cut down the tree, remained in this condition until the plaintiff was injured upon it in 1857. These facts were uncontradicted, and the court, Mr. Justice Miller, said, that "stronger proof of notice could not be given." In Market v. City of St. Louis, supra, the circuit judge instructed the jury that the plaintiff was not entitled to recover unless the defendant had notice of the unsafe condition of the gutter and neglected to repair it within a reasonable time thereafter. The jury found for the plaintiff, but the verdict was set aside at general term, on the ground that it was against this instruction. The supreme court, however, reversed the dental notice to a citizen is sufficient. Thus it has been correctly ruled in Michigan that a municipal corporation is not liable for damages to an individual for injuries caused by an opening in a sidewalk, made by an owner of the soil, or of the adjacent land, without proof of notice of the insufficiency or defect and neglect to have it remedied. And it was held that the notice to the public authorities of such nuisance or defect must be express, unless it should appear that the nuisance or defect was so conspicuous and permanent as to arrest the attention of all persons passing for such a time prior to the injury as to involve constructive notice to the municipal corporation.1 § 964. In Vermont, towns are liable for injuries from insufficiencies of highways caused by sudden freshets if the highway surveyor of the district had time after notice of the defect to repair it before the accident with the means in his control, considering as well his means by virtue of his official statute authority as the means in his hands individually. It has been ruled that no lack of diligence can be charged upon the town until notice to the proper officers of the insufficiency, in a case where it is not claimed that the freshet was itself so extraordinary as to amount to a notice that the road would need repairs, or that the dangerous condition of the road had existed long enough to charge the town officers with fault in not having discovered its condition without notice. It has also been properly ruled that there may be circumstances which would warrant the surveyor in delaying, after notice, the repair of a sudden injury to the road. It may be necessary to delay, in order to make preparations for commencing work, the road being in the mean time securely fenced to protect travel; but the mere fact that the repairs could not be completed on the day notice is given would not alone be enough to justify the surveyor in waiting until the following day to commence that which the statute requires to be done forthwith.2 § 965. At the same time it must be again remembered that if the defect was, at the time of the injury, palpable, dangerous, and in a public place, and had existed for a considerable period general term and sustained the verdict, on the ground that the instructions were more favorable to the defendant than the law justified. 1 Dewey v. City of Detroit, 15 Mich. 307; see McGinity v. Mayor, 5 Duer, 674; Howe v. Plainfield, 41 N. H. 135; Griffin v. Mayor, 5 Seld. 456; City v. Blood, 40 Ind. 62. 2 Clark v. Corinth, 41 Vt. 449. of time, knowledge on the part of the corporation may be presumed. And while notice to a citizen is not, as matter of law, notice to the city, but may be considered as evidence tending to show such notice, yet if many citizens had knowledge of the defect, so that it had become notorious, the evidence that the city authorities had notice would become very strong.1 § 966. Under the Massachusetts statute, to recover against a town for an injury sustained by a traveller on a highway by reason of the neglect of the town to keep it in repair, the defect which was the proximate cause of the injury must have existed for twenty-four hours, or been brought to the notice of the town, or been such that, with due care, the town might have known of its existence, before the time of the injury; and it is not enough that another defect, which occasioned the defect that was the proximate cause of the injury, had then existed more than twenty-four hours.2 But where a town, through its water committee, agreed with a contractor that he should make all trenches needed for laying water-pipes in such streets as the committee might from time to time direct, and that he should guard and light the trenches by night for the protection of travellers, it was held that the town was nevertheless liable for an injury to a traveller on the highway caused by negligence in guarding the trenches, although the defect had not existed twenty-four hours and the town had no notice thereof.3 § 967. Agents of corporation may be deemed its representatives through which it may receive notice of defects. - This is a necessary incident of corporations who can only act through agents. We advance a step further, however, when we take up the case of an officer of the corporation by whom a defect is caused. And the very causing of such defect by the corporation's officer is to be viewed as notice of it to the corporation.5 § 968. Defects out of the beaten track of the road. - In Wisconsin, under a statute which gives damages in case of "insufficiency or want of repair," it has been ruled that towns are not 1 Bill v. Norwich, 39 Conn. 222. 2 Ryerson v. Abington, 102 Mass. 526; Winn v. Lowell, 1 Allen, 177; Crocker v. Springfield, 110 Mass. 135. 271. 4 See supra, § 267; Deyoe v. Saratoga, 3 N. Y. Supreme Ct. 504; Bush v. Trustees, Ibid. 409. 5 Hardy v. Keene, 52 N. H. 370. Brooks v. Somerville, 106 Mass. 393; Kelley v. Fond du Lac, 31 Wisc. 180. See supra, § 105, note 5. . |