County Commissioners v. Wise

18 A. 31, 71 Md. 43, 1889 Md. LEXIS 80

• Court: Court of Appeals of Maryland
• Decided: June 11, 1889
• Status: Published

Opinion

McSherry, J.,

delivered the'opinion of the Court.

On the eleventh day of February, 1885, Sarah A. Wise became the owner of a saw mill and a grist mill, located on Deer Creek in Harford County. Prior to her purchase of the property the County Commissioners changed the bed of a public road, which formerly crossed the stream below the breast of the mill-dam, and located it some short distance above the dam. They constructed at the same time an iron bridge across the creek connecting with this.new road. On the third of August, 1885, a destructive freshet demolished the bridge. The mill-dam was partially swept away, and other injuries were done to the property of Mrs. Wise and her husband. They thereupon sued the Commissioners, and the case, after having been removed first to Baltimore County, and then to Baltimore City, was finally tried there in the Court of Common Pleas. The plaintiffs below, who are the appellees here, insisted that the Commissioners had been guilty of negligence in locating and constructing the bridge, and that in consequence of such negligence the bridge was washed from its abutments, and was driven by the flood upon the dam, destroying the latter and causing the other injuries particularly set forth in the record. Considerable testimony was adduced by the appellees tending to show that the abutments of the bridge had been unskilfully and carelessly constructed; that they had been built upon insufficient and improper foundations; that they had been placed too near to the margins of the stream, whereby the passage-way for the water was seriously narrowed; and that they had not been, by several feet, elevated far enough above the surface of the stream to allow the water, when high and swollen, to pass freely under the bridge. The appellees also offered evidence tending to show that the bridge had been located at an unsuitable place over a bend or curve in the creek, — the worst point in that section of the county.

There was, as is usually the case in such controversies as this, much conflict in the evidence on these subjects, but it is not material or necessary that it be noticed or referred to in considering the questions presented by this appeal.

When a municipal corporation undertakes, in the discharge of its duties, to construct or repair a bridge upon a highway, it is responsible for damage caused by the negligent, careless or unskilful manner of performing the work. This liability has been asserted and enforced by this Court in numerous adjudged cases, some of them of such recent date as to render it unnecessary to make citations from them, or to repeat here the reasons upon which they were determined. Kranz vs. Mayor, &c., of Baltimore, 64 Md., 491; Hitchins Bros. vs. Mayor, &c., of Frostburg, 68 Md., 100.

All the authorities agree in holding that where the injury complained of is the result of the exercise by a municipal corporation of its quasi 'judicial powers,, an action will not lie if there has been no negligence, carelessness or unskilfulness in doing the work which caused the damage. 2 Dillon Mun. Cor., (2d Edition) sec. 753, and cases cited, in the note thereto. But what particular acts are to be regarded as discretionary or quasi judicial on the one hand, and what purely ministerial on the other, is a question often exceedingly difficult to determine, and one which the adjudged cases are by no means harmonious ih deciding. It would be a hopeless task to attempt to reconcile these conflicting decisions. There are extreme ones in both directions. Whilst it is important that the necessary powers of a municipality, conferred upon it for the public wellfare, should not be unreasonably restricted, and should not be so construed as to subject the body corporate to liability in a civil action for an honest mistake of judgment made when acting in a quasi judicial character, it is no less incumbent on the Courts, to lay doAvn no rule which shall, when applied in practice, deprive the individual of redress, where his property has been damaged or invaded, or his person has been injured bjr the improper and negligent execution of these same discretionary powers. It is not easy, if indeed it be possible, to define with precision, except theoretically, the exact line which divides the quasi judicial from the ministerial powers of a public corporation, because they are often so dimly separated as to be apparently blended together. “All that can be done with safety” observed Mr. Justice Foote, in Lloyd vs. Mayor, &c., of New York, 1 Seld., 369, “ is to determine each case as it arises.” However, the decision of the case at bar does not require that we should adopt any definition of these powers, broad and general enough to comprehend other questions than the ones involved in - this -controversy. A bridge, like a sewer, may be so located as inevitably to cause injury to another, no matter how skilfully put together; and it would be strange indeed, if the municipality could be held for the damage resulting from the defective mechanical execxition of the work when properly located, and should be exempted from liability for precisely the same damage to the same individual caused by the careless and unskilful location of the same structure when properly put together. The construction of a bridge at a place totally unsuited for it, because calculated to occasion an injury like that complained of, can not be skilful in any sense of the term. It is undeniably true that a municipal corporation has no more authority than a private person to create a nuisance. Noonan vs. City of Albany, 79 N. Y., 470. It has, consequently, mo right to build its works in such a manner and at such a place as will inevitably cause injury to another. Inhabitants of West Orange vs. Field, 37 N. J. Eq., 600; Danbury & Norwalk R. R. Co. vs. Town of Norwalk, 37 Conn., 109. Where the injury resulted from the narrowness of the span of a bridge, it has been held to be due to a defect in construction. Perry vs. City of Worcester, 6 Gray, 544. If it be occasioned by the insufficiency of the size of a sewer it is likewise such a defect in construction as will render the corporation liable. Hitchins Bros. vs. Mayor, &c., of Frostburg, 68 Md., 100; Rochester White Lead Co. vs. City of Rochester, 3 N. Y., 463. If it be a result of the bridge or sewer being placed at such a locality as to produce the damage actually inflicted, it cannot be said that the construction was other than negligent and unskilful. Skilful construction means something more than skilfully putting suitable materials together. It involves putting them together in a proper manner upon a site adapted to the structure built. In determining whether a structure has been skilfully erected the place upon which it has been built cannot be overlooked or disregarded. Ho building located upon ground incapable of supporting it can, in fact, be skilfully constructed. Ho bridge erected at a point where it will certainly be washed away by high waters, either because of the narrowness of its span, its want of elevation, or because of a bend in the stream, is skilfully or carefully built. ■ The location necessarily enters into and is a part of the construction. There can be no construction without a location. There can be no skilful construction upon an improper location. The manner of building the thing, and the place where it is built, must both be considered in determining the question of care and skill in its construction. The fixing of the location, therefore, as part of the actual construction, is a ministerial act. If any injury he produced hy a negligent location of a bridge, the person aggrieved is not, and ought not to be, without remedy. In our opinion it was competent to' show by evidence that the bridge in question had been negligently located, and that the injury sustained by the appellees was the direct result of such negligence.

Turning now to the exceptions, we find that the first was taken to the ruling of the Court allowing a witness, from his knowledge of the stream, extending back to 1844, to state whether the span and height of the bridge were sufficient to enable the water to pass; and the second exception brings up the action of the Court in admitting evidence as to the unskilful location of the bridge and the inadequacy of its span. For the reasons we have given there was no error in either of these rulings. The ruling complained of in the third exception is not open to objection. The appellee produced a witness who had made “a sketch or painting of the scene, showing location of bridge, the mill-dam and country adjacent;” and after proving that the witness was an artist and draftsman, but that he had never seen the bridge, offered the sketch in evidence and the Court admitted it. As it would have been perfectly competent for the jury to have gone in person to inspect the locality (Act 0/I886, ch. 415,) it is not jmrceived how any error was committed in submitting to them a correct representation of what they would have seen had they gone upon the premises. The question passed on in Peoples’ Passenger Railway Co. of Baltimore vs. Green, 56 Md., 84, was entirely different.

The appellees proved by Charles B. McLean that he was a surveyor and civil engineer, that he had been a bridge superintendent, and was familiar with the building of bridges; that about two years after the flood of 1885, he examined the remains of the abutments, the foundations under them and the mortar found in them; and he stated his judgment to he that the work was inferior and unskilful. To this the appellants excepted. The witness was undoubtedly competent to give an opinion based on what he saw, and the mere fact that lie did not inspect the abutments until some time after the disaster, did not disqualify him from forming a judgment as to the character of the work, and’ the fitness of the materials used. Baltimore & Yorktown Turnpike Road vs. Crowther, 63 Md., 568. We discover no error in the fourth exception.

The fifth exception presents the rulings of the Court on the prayers. The first and third instructions granted at the instance of the appellees, submitting the question of the negligent location, construction and condition of the bridge to the jury, were, for the reasons hereinbefore fully stated, correct; and the action of the Court in rejecting the fourth and ninth prayers of the appellants withholding from the jury, the question of negligence in the location of the bridge, and instructing them that the appellees were estopped from objecting to such location, ivas consequently without error. The appellants’ fifth, sixth, seventh and eighth instructions distinctly submitted to the jury this identical question of the proper location of the bridge, and, taken in connection with those of the appellees, fairly and fully presented the law to the jury on this branch of the case. The appellants’ fourth and ninth prayers are wholly inconsistent with its fifth, sixth, seventh and eighth. Having induced the Court to grant the latter, it cannot complain because the fourth and ninth were rejected. Groff vs. Hansel, 33 Md., 161.

We do not think the appellees’ first and third instructions are open to the criticism that they ignore the non-liability of the appellants if the injury proceeded from the accident of a flood, unmixed with negligence on the part of the County Commissioners. Under the phraseology of these instructions a recovery was only possible provided the damage complained of resulted directly from the negligence of the defendants. The jury were explicitly told in the sixth instruction of the appellants that the plaintiffs could not recover if the proximate cause of the injury was the flood mentioned in the evidence.

There was no error in granting the second instruction of the appellees, especially as qualified by the eleventh instruction given by the Court as a substitute for the appellants' tenth prayer. The mill was owned by Mrs. Wise. Her husband, the other plaintiff, carried on business at the saAv mill on his own account, whilst the grist mill was operated by him and one Shannon. The second instruction allowed the jury to aAvard damages for the injury to the property and business of the plaintiffs, and the eleventh excluded as an element of damages the injury done to the business in Avhich Shannon was interested. There Avas no inconsistency betAveen them as in Balto. & Ohio R. R. Co. vs. Blocher, 27 Md., 277. The tenth prayer Avhich eliminated the loss of business at the saw mill, and restricted a recovery to the damage done to the mill, the dam and the road-ways, Avas entirely too narrow, and was properly rejected.

, The Court Avas right in rejecting the appellants' first and second prayers. These prayers sought to withdraAv the case from the jury upon the assumption that there was no legally sufficient evidence from which they could find that the injuries complained of resulted from the negligence of the appellants, or that the appellants were guilty of any negligence towards the appellees. There was evidence before them from which the jury could legally find that the bridge, when it was washed from its abutments, to which it had never been fastened, Avas swept against and upon the dam with a “thud,” and caused it to give way, the timbers of the dam having been discovered, after the high waters abated, interlocked with the iron of the bridge, and the bridge having been found some distance below the site of the dam. There was also evidence legally sufficient to show that the bridge was dislodged because unskilfully located and built, and because the water-way was made too narrow between the abutments. Assuming the truth of this evidence, it was sufficient when taken in connection with the other.facts in the case, to justify a verdict for the plaintiffs. The third prayer was properly refused because it denied the right to recover for any injury sustained by the appellees, if Shannon had an interest in the grist mill business.

There was a demurrer filed, which the Court properly overruled. It has been insisted that it should have been sustained, because the declaration, so it is alleged, does not disclose any venue. The omission of a venue may be availed of by demurrer. Crook vs. Pitcher, 61 Md., 510. But we think the verme is sufficiently laid, and the body of the declaration distinctly shows that the place where the injury was done was Harford County. Where the proper venue is laid in the body of the declaration, the county in the margin may be rejected as surplusage. 1 Chitty Pl., (8th Am. Ed.,) 274.

After verdict a motion in arrest of judgment was interposed, and the reason assigned was that the verdict rendered was for the plaintiff and not for the plaintiffs. The verdict was a sealed one, and though in the body of the paper the singular, “plaintiff,” is used, the caption sets forth in full and at length the names of both the plaintiffs, and it thus sufficiently appears that the verdict was for tire plaintiffs. The motion was properly overruled.

A motion was made in this Court to dismiss the appeal, but we have not thought it necessary to consider it.

(Decided 11th June, 1889.)

Finding no errors in the rulings of the Court of Common Pleas, its judgment Avill be affirmed.

Judgment affirmed.