Lee County v. Yarbrough , 85 Ala. 590 ( 1888 )

STONE, C. J.

It is not seriously controverted in this case, that if the horse had been driven or ridden when he fell through the bridge and was destroyed, the county would have been liable, The bridge had been built at county expense, and no guaranty had been exacted from the builder. Code of 1876, § 1692; Code of 1886, § 1456; Barbour Co. v. Horn, 41 Ala. 114; Schroeder v. Colbert Co., 66 Ala. 137.

The excuses relied on in this case are — first, that the bridge had been ’ somewhat dismantled, and that notice of its unsafe condition had been posted on a tree near one of its approaches. Without intending to reflect on any one, we think the plan adopted for giving warning was not the most effective that could have been taken. It would seem that the approaches to the bridge should have been obstructed, or torn up, so that approach would have been barred by night, as well as warned off by day. To persons travelling by night, it would seem that the bridge might be classed as dangerous.

The second defensive excuse relied on is, that the horse had broken from his confinement, and was running at large, with no one to control or direct him. We have no general statute in Alabama, requiring cattle or dumb animals to be kept within an inclosure. We have local regulations of this kind, but they are by no means general. The general rule is to fence stock out, not in. And stock running at large are not so far trespassers, as to absolve the public from all responsibility for their abuse. — S. & N. Ala. R. R. Co. v. Williams, 65 Ala. 74.

The liability of counties, for injuries caused by defective public bridges, is purely statutory; for, in the absence of statute, there is no liability. — Code of 1886, § 1456, and citations; 4 Amer. & Eng. Encyc. of Law, 364; 2 Dil. Corp. §§ 728, 997; Askew v. Hale County, 54 Ala. 639; Gilman v. Contra Costa Co., 68 Amer. Dec. 290, and note; Hill v. Boston, 122 Mass. 344; s. c., 23 Amer. Rep. 332; Heacock v. Sherman, 14 Wend. 58; House v. Board of Comm’rs., 60 Ind. 580; Brown v. Jefferson County, 16 Iowa, 339; Taylor v. Davis County, 40 Ib. 295; Holmes v. Hamburg, 47 Ib. 340.

The statute under which this action can be maintained, if at all, is Code of 1886, § 1456. That statute requires, that bridges “erected by contract with the county commissioners shall continue safe for the passage of travellers and other persons.” If the contractor has been required to give, and has given a guaranty, then an action for damages resulting from a defect in the bridge must be prosecuted against him, and upon his bond. If no guaranty bond has been given, then the liability rests on the county, and the suit is against it. The present case falls within the category last named.

• It may be that no valid reason can be assigned for discriminating between loose stock going at large, and suffering an injury from a defective bridge, and a like injury to “travellers and other persons”, to whom the bridge affords a “passage”, and which the statute requires to be kept “safe.” There is no provision, however, for the first, while the latter is expressly provided for. If, instead of a suit against the county, the present action had been against the contractor on his guaranty bond that the bridge should “continue safe for the passage of travellers and other persons,” it is manifest there could be no recovery. It is equally manifest, that there can be no recovery against the county; for its liability, when it exacts no guaranty of the contractor, is in all respects the same as the contractor’s when he gives such guaranty.

This case was tried on an agreed state of facts, about which there was no dispute.

The judgment of the Circuit Court is reversed, and a judgment here rendered in favor of Lee county, the defendant. Let the appellee, Yarbrough, pay the costs of appeal, and the costs in the court below.

Reversed and rendered.