1. When a municipal corporation is required by its charter to
keep a bridge in repair, if the duty was imposed in consideration
of privileges granted, and if the means to perform it are within
the control of the corporation, such corporation is liable to the
public for an unreasonable neglect to comply with the
requirement.
2. When all the foregoing conditions concur, a corporation is
also liable for injuries to the persons or property of
individuals.
3. This liability extends to injuries arising from neglect to
perform the duty enjoined or from negligence and unskillfulness in
its performance.
This was a writ of error to the Circuit Court of the United
States for the District of Columbia. The plaintiff in error
Page 66 U. S. 40
brought case against the Corporation of Washington for bodily
injuries suffered by him in consequence of being thrown from the
bridge across Rock Creek, at the termination of K Street. On the
trial in the circuit court, the plaintiff proved that the charter
of the city (sec. 13) provided that
"the said corporation shall have the sole control and management
of the bridge, and shall be chargeable with the expenses of keeping
the same in repair, and rebuilding it when necessary."
In May, 1854, the plaintiff, a citizen of Washington, was
crossing the bridge in an omnibus when the bridge broke down, and
he was seriously injured. On part of the defendant, evidence was
given that the bridge had been erected by skillful and scientific
workmen, in good faith, upon a plan patented by the government and
believed to be faultless in principle; that the construction was
thought to be strong and solid, both the work and materials being
of the best description; that the giving way of the bridge was the
result of an accident and of an unknown defect in the plan of it;
that when the bridge was completed, in 1850, its strength and
capacity were amply tested; that a commissioner was appointed by
the corporation of the city to inspect and superintend the bridge,
who performed his duties, but did not discover any defect; that the
corporation had no notice, either through their officer or
otherwise, that the bridge was unsafe, and that in fact there was
no indication of unsoundness in it before the time of its fall.
To rebut this evidence of the defendant, the plaintiff proved
that the bridge was built by Rider, the patentee of the plan, who
warned the officers of the city corporation in vain against
building the arch as high as they proposed to make it; that any
bridge on that plan, unless it be horizontal, is unsafe, and the
insecurity is increased in proportion as the arch is raised; that
within a year after the bridge was put up, the approach to it was
changed at each end, adding thereby about three tons to its weight;
that for several days before it fell, divers persons observed its
unsafe condition.
The defendant prayed the court to instruct the jury that upon
the whole evidence the plaintiff was not entitled to recover, and
the court gave the instructions prayed for. A verdict
Page 66 U. S. 41
and judgment were accordingly given for the defendant, and the
plaintiff sued out this writ of error.
Page 66 U. S. 45
MR. JUSTICE CLIFFORD.
This is a writ of error to the Circuit Court of the United
States for the District of Columbia.
According to the transcript, the action was trespass on the
case, and was brought by the plaintiff, to recover damages against
the corporation, defendants, on account of certain personal
injuries sustained by him from the falling of a certain bridge
constructed by the authorities of the corporation, and which, as he
alleged, they were bound to keep in good repair, and safe and
convenient for travel.
Referring to the declaration, it will be seen that the plaintiff
alleged, in substance and effect, that at the time and long
before
Page 66 U. S. 46
the bringing of the suit, there was and still is a certain
common and public bridge over Rock Creek leading from K Street
north, in the City of Washington, to Water Street in Georgetown,
and that the defendants had been accustomed to keep the same in
repair, and of right ought to have made such repairs to the same as
to have rendered it safe and convenient for travel by the citizens
generally, whether on foot, or with their horses, carts, carriages,
or other vehicles; nevertheless the plaintiff averred that the
bridge, on the twentieth day of May, 1854, was in an insecure,
unsafe, and dangerous condition by reason of the default and
negligence of the defendants, so that while the plaintiff was then
and there lawfully passing over and across the same in an ordinary
vehicle, the bridge, in consequence of its unsafe and insecure
condition and of the default and negligence of the defendants,
broke, gave way, and fell in, whereby the plaintiff was, with great
force, thrown and precipitated into the creek, and received the
injuries particularly described in the declaration.
Issue was duly joined between the parties upon the plea of not
guilty filed by the defendants, and upon that issue the parties
went to trial. Evidence was introduced by the plaintiff showing
that he was returning from Georgetown to the City of Washington at
the time the accident occurred, and was riding in one of the
omnibuses running between the two cities; that while crossing the
bridge in the omnibus, the bridge gave way and fell, and the
vehicle, with the plaintiff in it, was precipitated into the creek,
whereby he narrowly escaped drowning. His left arm was broken and
his left hand crushed; and the statement of the bill of exceptions
is that "the hand and arm have been rendered useless for life." He
was also seriously bruised, and his injuries were of such a
character that he was confined thereby to his house for a long
time, under medical attendance, and the case shows that throughout
the whole of that period of time he suffered great bodily pain.
On the other hand, evidence was given by the defendants that
before any plan of the contemplated structure was adopted, they
passed an ordinance raising a committee to advertise for proposals
for the erection of the abutments and construction
Page 66 U. S. 47
of the bridge. That committee consisted of the mayor and two
other members of the council, and the evidence offered by the
defendants tended to show that they took the opinion of scientific
men upon the subject before they approved the plan under which the
bridge was built, and that the defendants acted in good faith
throughout and with a view of building a bridge suitable in all
respects for the purposes for which it was required. They also
offered evidence tending to show that the materials of the bridge
were of the best description, that the work was carefully examined
by their agents as the same was done, and that the giving way of
the bridge was solely the result of accident arising from a defect
in the plan under which it was constructed. After the bridge was
built, the defendants passed another ordinance, appointing a
commissioner to inspect the bridge, and they introduced evidence
tending to show that he never ascertained or reported to them that
the bridge was unsafe, defective, and out of repair, and they
insisted at the trial, and offered evidence tending to prove, that
they had no notice from that officer, or otherwise, that the bridge
was insecure, unsafe, or defective either in principle or in
fact.
Rebutting evidence was then given by the plaintiff showing that
the bridge was an iron bridge with a single span of more than a
hundred feet; that it was constructed on the plan of Rider's
patent, and was built by the inventor of that improvement. He also
gave evidence tending to prove that one of the scientific persons
whose opinion was sought by the committee appointed under the first
ordinance stated to the defendants at the time he was consulted to
the effect that, although the principle of the plan was correct,
still it could not be applied indefinitely to iron bridges; that
the arch of the bridge was higher than had ever before been
attempted, and that the contractor remonstrated against building it
so high, but that the defendants required it to be so constructed,
and he also proved that the contractor was still of the opinion
that the bridge fell in consequence of the height of the arch. One
of the committee also was examined by the plaintiff, and he
testified that he was not consulted about the plan; that
although
Page 66 U. S. 48
he believed it to be a good one at the time, he is now satisfied
that it was essentially and radically defective. He also examined
the commissioner of the first ward, who testified that he crossed
the bridge a few days before the accident occurred, and that it was
so tremulous and shook so violently that he was apprehensive it
would fall; and divers other witnesses testified that for several
days before the bridge fell, they had observed that several of the
braces were broken, and some of the wedges had fallen out, and the
bridge was loose and shook greatly when carriages passed over
it.
At the prayer of the defendants, the court instructed the jury
that upon the whole evidence, the plaintiff could not recover in
this action, and the plaintiff excepted. Under the instructions of
the court, the jury returned their verdict in favor of the
defendants.
1. Looking at the whole evidence, it is obvious that the charge
of the court cannot be regarded as correct unless it be true, as is
contended by the defendants, that they are not responsible in
damages to an individual for injuries received by him in crossing
the bridge, although it may appear that the injuries were received
without any fault of the complaining party, and were occasioned
solely through the defect of the bridge and the default and
negligence of the defendants. It is conceded that the defendants
were bound by their charter to maintain the bridge and keep it in
repair, and it is fully proved, and not denied, that it was
defective and very much out of repair at the time the accident
occurred. Full and uncontradicted proof was also adduced by the
plaintiff that he was seriously and permanently injured; and it is
not possible to doubt from the evidence that his injuries were
received without any fault of his own and solely through the
insufficiency of the bridge and its want of repair. Want of
ordinary care on the part of the plaintiff was not even suggested
at the trial, and the circumstances disclosed in the evidence
afford no ground whatever for any such inference.
Having shown these facts, it only remained for the plaintiff to
prove if the defendants, under any circumstances, are responsible,
in this form of action, for such an injury, that they
Page 66 U. S. 49
were in default, and had been guilty of negligence in suffering
the bridge to continue open for public travel while it was known to
be out of repair and insecure. Both sides introduced testimony on
this point, but the charge of the court withdrew entirely the
plaintiff's evidence from the consideration of the jury. Where
there is no evidence to sustain the action, or one of its essential
elements, the court is bound so to instruct the jury; but where
there is evidence tending to prove the entire issue, it is not
competent for the court, although the evidence may be conflicting,
to give an instruction which shall take from the jury the right of
weighing the evidence and determining its force and effect, for the
reason that, by all the authorities, they are the judges of the
credibility of the witnesses, and the force and effect of the
testimony.
Greenleaf v.
Birth, 9 Pet. 299;
Bank of
Washington v. Triplet, 1 Pet. 31. Applying that
rule to the present case, it is clear, in view of what has already
been stated, that the charge of the court cannot be sustained, if
the defendants are liable in this form of action, under any
circumstances, for such an injury.
2. It is not, however, upon any such ground that the defendants
attempt to sustain the instruction, but they insist that, being a
municipal corporation, created by an act of Congress, they are
invested with the power over the bridge merely as agents of the
public, from public considerations and for public purposes
exclusively, and they are not responsible for the nonfeasances or
misfeasances of the persons necessarily employed by them to
accomplish the object for which the power was granted. Municipal
corporations undoubtedly are invested with certain powers, which,
from their nature, are discretionary, such as the power to adopt
regulations or bylaws for the management of their own affairs, or
for the preservation of the public health, or to pass ordinances
prescribing and regulating the duties of policemen and firemen, and
for many other useful and important objects within the scope of
their charters. Such powers are generally regarded as
discretionary, because, in their nature, they are legislative; and
although it is the duty of such corporations to carry out the
Page 66 U. S. 50
powers so granted and make them beneficial, still it has never
been held that an action on the case would lie against the
corporation, at the suit of an individual, for the failure on their
part to perform such a duty. But the duties arising under such
grants are necessarily undefined, and, in many respects, imperfect
in their obligation, and they must not be confounded with the
burdens imposed, and the consequent responsibilities arising, under
another class of powers usually to be found in such charters, where
a specific and clearly defined duty is enjoined in consideration of
the privileges and immunities which the act of incorporation
confers and secures. Where such a duty of general interest is
enjoined, and it appears, from a view of the several provisions of
the charter, that the burden was imposed in consideration of the
privileges granted and accepted, and the means to perform the duty
are placed at the disposal of the corporation, or are within their
control, they are clearly liable to the public if they unreasonably
neglect to comply with the requirement of the charter; and it is
equally clear, when all the foregoing conditions concur, that, like
individuals, they are also liable for injuries to person or
property arising from neglect to perform the duty enjoined, or from
negligence and unskillfulness in its performance. At one time it
was held that an action on the case for a tort could not be
maintained against a corporation, and indeed it was doubted whether
assumpsit would lie against a corporation aggregate, since, it was
said, the corporation could only bind itself under seal; but courts
of justice have long since come to a different conclusion on both
points, and it is now well settled that corporations, as a general
rule, may contract by parol, and, like individuals, they are liable
for the negligent and unskillful acts of their servants and agents,
whenever those acts occasion special injury to the person or
property of another. Whether the action in this case is
maintainable against the defendants or not, depends upon the terms
and conditions of their charter, as is obvious from the views
already advanced.
By the second section of their charter it is provided, among
other things, that they shall continue to be a body politic and
corporate, "and, by their corporate name, may sue and
Page 66 U. S. 51
be sued, implead and be impleaded, grant, receive, and do all
other acts as natural persons." They may purchase and hold real,
personal, and mixed property, and dispose of the same for the
benefit of the city. Large and valuable privileges also are
conferred upon the defendants, and the thirteenth section of the
charter provides, in effect, that the defendants shall have the
sole control and management of the bridge in question, "and shall
be chargeable with the expense of keeping the same in repair, and
rebuilding it when necessary." Comment upon the provision is
unnecessary, as it is obvious that the duty enjoined is as specific
and complete as our language can make it, and it is equally clear
that the bridge is placed under the sole control and management of
the defendants and, in view of the several provisions of the
charter, not a doubt is entertained that the burden of repairing or
rebuilding the bridge was imposed upon the defendants, in
consideration of the privileges and immunities conferred by the
charter. Most ample means also are placed at the disposal of the
defendants or within their control to enable them to perform the
duty enjoined. Whatever difference of opinion there may be as to
the other conditions required to fix the liability, on this one, it
would seem there can be none, as the defendants have very large
powers to lay and collect taxes on almost every description of
property, real and personal, as well as on stocks and bonds and
mortgages, and they also derive means for the use of the city from
granting licenses, and from the rents and profits of real estate
which they own and hold. All the conditions of liability,
therefore, as previously explained, concur in this case.
It is supposed by the defendants that the decision of this Court
in
City of Providence v.
Clapp, 17 How. 161, is opposed to the right of the
plaintiff to maintain this action; but we think otherwise. Injury
had been received by the plaintiff in that case, in consequence of
one of the principal streets of the city having been blocked up and
encumbered with snow, and the principal question was whether such
an obstruction was one within the meaning of the statute of the
state on which the action was founded, and the Court held that the
city was
Page 66 U. S. 52
liable. Cities and towns are required by statute in most or all
of the northeastern states to keep their highways safe and
convenient for travelers by day and by night, and if they neglect
that duty and suffer them to get out repair and defective and
anyone receives injury through such defect either to his person or
property, the delinquent corporation is responsible in damages to
the injured party. No one, however, can maintain an action against
the corporation grounded solely on the defect and want of repair of
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. 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 nonperformance of the
duty, then every 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. It was a sound rule of law, and
prevails everywhere to the present time. Reference is often made to
the case of
Russell v. Men of Devon, 2 Term 667, as an
authority to show that no action will lie against a municipal
corporation in a case like the present, but it is a misapplication
of the doctrine there laid down. Suit was brought in that case
against the inhabitants of a district, called a county, where there
was no act of incorporation, and the court held that the action
would not lie, admitting, however, at the same time that the rule
was otherwise in respect to corporations. But whether that be so or
not, the rule here adopted has been fully sanctioned in all the
English courts.
Henley v. The Mayor of Lyme, 5 Bing. 91.
It was ruled in the Common Pleas by Best, Ch.J., and the case was
then removed into the King's Bench by writ of error, and was then
decided by Lord Tenderden and his associates in the same way.
Same v. Same, 3 Barn. & Adol. 77.
Judgment of affirmance having been given in the King's Bench,
the cause was removed to the House of Lords by another writ of
error sued out by the same party. Baron Parke
Page 66 U. S. 53
gave the opinion on the occasion, all of the other judges and
the Lord Chancellor concurring. Among other things, he said that in
order to make good the declaration, it must appear first that the
corporation is under a legal obligation to repair the place in
question; secondly that such obligation is matter of so general and
public concern that an indictment would lie against the corporation
for nonrepair; thirdly, that the place in question is out of
repair; and lastly, that the plaintiff has sustained some peculiar
damage beyond the rest of the King's subjects by such want of
repair, and after explaining these several conditions and showing
that the case fell within the principles laid down, he stated that
it was clear and undoubted law that wherever an indictment would
lie for nonrepair, an action on the case would lie at the suit of a
party sustaining any peculiar damage.
Mayor of Lyme Regis v.
Henley, 2 Cl. & Fin. 331. Numerous decisions have since
that time been made by the courts in this country approving the
rule laid down in that case and applying it to cases like the
present.
Erie v. Schwingle, 22 Penn. 384;
Storrs v.
City of Utica, 17 N.Y. 104;
Conrad v. Trustees of
Ithaca, 16 N.Y. 159;
Browning v. City of Springfield,
17 Ill. 143;
Hutson v. City of N.Y., 5 Sand. S.C. 289;
Lloyd v. Mayor of City of N.Y., 1 Seld. 369;
Wilson v.
City of N.Y., 1 Denn. 595; 2 Denn. 450;
Rochester White
Lead Co. v. City of Rochester, 3 Conn. 463;
Smoot v. Mayor
of Wetumpka, 24 Ala. 112;
Hicocke v. Trustees of Village
of Plattsburg, 15 Barb. S.C. 427;
Mayor of N.Y. v.
Furze, 3 Hill 612. Contrary decisions undoubtedly are to be
found, but most of the cases are based upon a misapplication of
what was decided in
Russell v. Men of Devon, to which
reference has already been made and which is certainly not an
authority for any such doctrine at the present time. In view of the
whole case, we are of the opinion that the charge of the circuit
court was erroneous, and the judgment is accordingly
Reversed with costs and the cause remanded with directions
to issue a new venire.