Smith v. Zimmer , 45 Mont. 282 ( 1912 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The evidence discloses the following: The accident occurred on October 11, 1909, near the point where the road crosses Elk creek by a steel or iron bridge. As it approaches the bridge, the road extends along the shore of the stream only a few feet away. It is upon a grade two and a half or three feet above the level of the natural surface. At the bridge it turns at a right angle. In the grade was a culvert, constructed so as to allow the passage of water into Elk creek through a coulee which the road crosses. On the side toward the stream between the culvert and the bridge, the grade, except a small portion about three feet in width, had been undermined and washed away by high water in the latter part of the preceding June, leaving a cut hank and an excavation several feet in depth. At the time of the accident this excavation was filled with water. In the morning plaintiff had gone to Augusta, traveling over a cut-off road through the country. He left there about dark, taking the county road, because, as he said, he deemed it safer. He knew that there had been high water early in the year and that the roads in some places had been washed out, but had no knowledge of any washout on this road. The night was so dark that he could not see. He trusted to his team, which consisted of old and gentle horses, to follow the road. When the horses passed the culvert and reached the excavation they plunged into it, partially overturning the wagon into the water. He was much frightened by the suddenness of the accident, and, being unable to see, could not tell what further danger was impending. He was under the impression that the horses in their plunging would completely overturn the wagon and pin him down in the water. As he struggled in the water to escape the plunging horses and to extricate himself, his foot was caught and held fast in the “comb” of the wagon brake. He finally succeeded in releasing the horses by cutting the traces with his pocket knife; but in the struggle to avoid injury from them and afterward to release his foot, which he finally did by cutting off bis shoe, bis ankle was bruised and wrenehed, with the result that be has become permanently lame. There is little direct testimony tending to show that any of the defendants had actual notice of the condition of the road; but it is not controverted that the washout had occurred in the month of June and that no attempt had been made to repair the defect or remove the obstruction caused by it. It appears that the road is an old and regularly traveled road, having been used as such for many years, the plaintiff stating that he had known and traveled it for thirty-nine years; that it had been repaired at times by the supervisor of the district, and that, as already noted, it crosses Elk creek by an iron bridge. It appears also that there is a record and map of it among those of the county roads kept in the office of the county clerk.

Passing, for the moment, the question whether upon the facts disclosed there arose a liability on the part of the defendants or any of them for an injury resulting from their failure to discharge a duty enjoined upon them by law, the motion for a nonsuit should not have been sustained upon any of the four other grounds enumerated. Upon the assumption that it was the imperative duty of the defendants under the law, without reference to their rank of office, to keep the roads of the county in a reasonably safe condition, they were under an obligation, equally imperative, to exercise reasonable care to inspect them from time to time to ascertain their condition, in order that they might perform this duty; for it would be absurd to say that they owed a duty to the public generally and to the private- citizen personally by reason of their official position, but that they were under no obligation to ascertain when action on their part was required, or that they were not obliged to act until they had received personal notice of a condition calling for action. An equivalent proposition would be to assert that though these officers have exclusive control and supervision over the county roads, with the incidental but imperative duty to keep them in reasonably safe condition, they are not required to repair until they are requested to do so. . If they are liable at all, the rule of reasonable diligence applicable to municipalities applies to [1] them, viz., that when the defect has existed for such a length of time and under such circumstances that the municipality or its officers, in the exercise of reasonable care and diligence, ought to have obtained knowledge of it, notice will be presumed. (Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 425; Elliott on Roads and Streets, sec. 626.) The evidence on this branch of the case was sufficient to require it to be submitted to the jury.

The evidence was also sufficient to go to the jury upon the question whether the road was a public highway falling under the jurisdiction of the defendants, within the definition of the statute (Rev. Codes, sec. 1337), viz.: “All * * * roads laid out or erected by the public or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property are public highways.” The record kept by the [2] commissioners, presumably under the requirements of other provisions of the Codes (secs. 1341, 1357) amounts to a recognition of the road in question by the board of commissioners, the executive body of the county, as a public road. This, together with the other facts showing its use by the public, was a sufficient prima facie showing that it is a public road. (State v. Auchard, 22 Mont. 14, 55 Pac. 361; Bequette v. Patterson, 104 Cal. 282, 37 Pac. 917; Bayard v. Standard Oil Co., 38 Or. 438, 63 Pac. 615; Kircher v. Town of Larchwood, 120 Iowa) 578, 95 N. W. 185; Madison Township v. Scott, 9 Kan. App. 871, 61 Pac. 967.)

The fact that the injury suffered by the plaintiff was due, m any measure, to his inadvertence in driving into the excavation or to his struggle to extricate himself from the dangerous position, does not necessarily lead to the conclusion, as a matter of [3] law, that he was guilty of negligence. The evening was so dark that he could not see. It was natural that, not having any knowledge of the washout, he should leave the horses to follow the road. He had a right to presume that there was no pitfall therein into which they would take him; in other words, that the public officers had done their duty. (Weed v. Village of Ballston Spa, 76 N. Y. 329.) And when the wagon was overturned iuto the water and his foot became fastened, it was but natural that in his fright and anxiety for his own safety and that of his property, induced by his inability to understand the situation, he did not act with that coolness and prudence which would have been required of him under ordinary circumstances.

In alleging the fourth ground of the motion the defendants evidently sought to invoke the exception or eorrollary to the general rule, that contributory negligence is a matter of defense, [4] viz., that when the plaintiff’s own ease raises a presumption of contributory negligence, the burden of proof is immediately upon him to exculpate himself from the suspicion, thus created, of the lack of due care on his own part, which will otherwise be imputed to him. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905.) If it be admitted that, had plaintiff refrained from struggling to save himself and his property, he would not have been caught in the brake or suffered injury, it was nevertheless, under the circumstances shown, a question for determination by the jury whether he acted as a reasonably prudent person would in the emergency in which he unexpectedly found himself. (Kennon v. Gilmer, supra.)

We are of opinion, also, that the fifth ground of the motion was not well laid. The question involved was considered by this court in Merritt v. McNally, 14 Mont. 228, 36 Pac. 44, and decided adversely to the contention of defendants. As there pointed out, it is not incumbent upon the plaintiff to allege and [5] prove that defendant Zimmer had funds at his disposal which he could use in order to make the necessary repairs in the road, but that the question of defense based upon such matter must be determined upon an answer. (See, also, Adsit v. Brady, 4 Hill (N. Y.), 630, 40 Am. Dec. 306; Weed v. Village of Ballston Spa, supra.)

This brings ns to the consideration of the question presented by the first ground of the motion. In Adsit v. Brady, supra, Judge Bronson, speaking for the court, said: “When an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. This principle is so well settled that it is only necessary to inquire whether there be anything in this case to take it out of the operation of the general rule.” The rule thus broadly stated includes nonfeasance or misfeasance with reference to any official duty, whether it is ministerial or discretionary, ®r whether it falls exclusively within the class of those which are due to the public only, as distinguished from those which are due to the private citizen also.

After pointing out the distinction between the different kinds of duties imposed upon public officers, Judge Cooley, with reference to their liability to private suits for nonfeasance or misfeasance in the performance of them, says: “The rale of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.”

In Shearman & Redfield on Negligence, third edition, section 156, the rule is stated thus: “The liability of a public officer to an individual for his negligent acts or omissions in the discharge of an official duty depends altogether upon the nature of the duty as to which the neglect is alleged. Where his duty is absolute, certain and imperative, involving merely the execution of a set task — in other words, is simply ministerial — he is' liable in damages to anyone specially injured either by his omitting to perform the task, or by performing it negligently or un skillfully. On tbe other hand, where his powers are discretionary, to be exercised or withheld according to his own judgment as to what is necessary and proper, he is not liable to any person for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them, where no corruption or malice can be imputed, and he keeps within the scope of his authority. An officer possessing such discretionary powers is spoken of as a judicial or quasi-judicial officer, from the likeness of his discretionary functions to those of a judge who decides controversies between individuals. ’ ’

We apprehend that no court would fail to observe the distinction here pointed out, because it is based upon principles of public policy. It would be intolerable if every public officer were compelled to act or refrain from acting at his peril of a suit for damages by a private citizen, without regard to the nature of the duty involved or the character of the resulting injury. It must, therefore, be the case that unless the particular duty is one the performance of which the individual citizen has a right to demand in his own behalf, or the omission or inadequate performance of which results in special injury to him, he has no right of action for a dereliction with reference to it, by the officer upon whom it is imposed; for in such a case the wrong is public, not private, and must be redressed, if at all, by some remedy invoked on behalf of the public, such as summary removal from office, pr removal by impeachment, or a criminal prosecution under the provisions of law applicable. A reference to a few cases will show that this is the rule established by current authority. As we have said, the statement of Judge Bronson, in Adsit v. Brady, supra, taken literally, would cover every case of official dereliction; yet at the close of the opinion, in answer to the contention of counsel that the defendant had a discretion with reference to the duty involved, and that his neglect should have been charged as willful and malicious, the court said that in the performance of the particular duty he had no discretion. This statement impliedly recognized the distinction pointed out by Cooley and Shearman & Bedfield, supra.

In Garlinghouse v. Jacobs, 29 N. Y. 297, the same court, through Judge Wright, criticised the opinion in Adsit v. Brady as stating the rule too broadly; but in the case of Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713, it was said by Peckham, Judge, with reference to the rule as therein declared: “This is a healthful rule, sound entirely in public policy, if as a rule of law it can be questioned. ’ ’ The ease is cited and approved in Hover v. Barkhoof, 44 N. Y. 113, and later eases. It may be said, however, that the dereliction in question in each of these cases was with reference to a specific duty expressly imposed by statute upon the defendant. In Adsit v. Brady the charge was neglect as superintendent of repairs on canals, to remove an obstruction from the Brie canal, a duty enjoined upon the defendant by statute. In Robinson v. Chamberlain, for a similar reason the defendant who had, under authority of a statute, undertaken by contract to keep a portion of the canals in proper condition and repair, was held for neglect of his duty, upon the theory that, having by his contract assumed to perform a specific duty, he was liable for any negligence resulting in special injury to a private citizen, just as much as a public officer would have been, had the same duty been imposed upon him. In Hover v. Barkhoof the commissioners of a town having sufficient funds in their hands, or obtainable, to repair a defective bridge, were held for neglect to repair, which resulted in damage to plaintiff by a fall of the bridge. In this case the duty was enjoined by statute.

It may well be said that the rule of liability is the same, whether the duty is imposed by statute or arises by implication out of the character of the office and the attendant duty; yet the duty must be clear and certain. In Doeg v. Cook, 126 Cal. 213, 77 Am. St. Rep. 158, 58 Pac. 707, under a charter of a town which imposed upon the board of town trustees and the marshal the duty to keep the streets of the municipality in repair, it was held that these officers were liable to the plaintiff for permitting a culvert to remain open and without guard, by reason of which the plaintiff fell into it and was injured. The court quotes approvingly from Robinson v. Chamberlain, supra, wherein the broad rule as stated in Adsit v. Brady is approved. But the court evidently understood the rule as referring to duties ministerial in character, and not to those which are discretionary.

In County Commissioners v. Duckett, 20 Md. 468, 83 Am. Dec. 557, the commissioners of Anne Arundel county were held liable for an injury caused by a defect in a road because they were charged generally • with the duty of keeping the roads in repair.

In Sells v. Dermody, 114 Iowa, 344, 86 N. W. 326, there was involved the question whether a road supervisor was liable for neglect to repair a road in his district, whereby the plaintiff suffered injury. The court, after an extensive citation of authorities, including American and English cases, held that he was. The following authorities also sustain the rule: Mattson v. Astoria, 39 Or. 577, 87 Am. St. Rep. 688, 65 Pac. 1066; Amy v. Supervisors, 11 Wall. (U. S.) 136, 20 L. Ed. 101; Bennett v. Whitney, 94 N. Y. 354; County Commissioners v. Wilson, 97 Md. 207, 54 Atl. 71, 56 Atl. 596; Pennington v. Straight, 54 Ind. 376; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; McCord v. High, 24 Iowa, 336; 11 Cyc. 412.

In two cases—Merritt v. McNally, supra, and Bair v. Struck, 29 Mont. 45, 63 L. R. A. 481, 74 Pac. 69—this court has recognized and applied the rule, holding public officers liable for nonfeasance or misfeasance, with reference to ministerial duties. In some states the liability of officers having supervision of the public roads is denied. In Worden v. Witt, 4 Idaho, 404, 95 Am. St. Rep. 70, 39 Pac. 1114, the court bases its conclusion that they are not liable, upon considerations of public policy. Where the services required by the statute are compulsory, it is held that liability does not attach, except when declared expressly by the statute. (Thornton v. Springer, 5 Tex. 587.) The holding in these cases is exceptional.

The liability of defendants in this ease, then, is to be determined by reference to the provisions of the Codes defining their duties. These are the following:

The boards of county commissioners must divide their respective counties into suitable road districts. (Rev. Codes, sec. 1356.) The board has general supervision over the highways and must cause to be opened and worked such as may be necessary. It also has power to do whatever in its judgment and discretion may be necessary for the best interests of the roads and road districts in the county; and the road supervisor shall in all things be under the direction and control of the board. (Sec. 1357.) The board must appoint road supervisors. (Sec. 1358.) The supervisor shall be a resident of his district. (See. 1359.) “Under the direction and supervision of the board of county commissioners,” the supervisor must take charge of the roads, keep them clear from obstructions and in good repair, cause banks to be graded, bridges and causeways to be made where necessary and to keep the same in good repair and renew them when destroyed. (Sec. 1360.) If a supervisor neglects or fails to perform the duty imposed by law and such rules and regulations as may be laid down by the board, the board may remove him and appoint another suitable person in his place. (Sec. 1362.) The supervisor must open- or cause to be opened when ordered by the board all highways which have been laid out and established, and must keep the same in good repair ; and if the levy for that purpose is not sufficient, the board may appropriate from the general road tax any amount that may be necessary for the purpose. (See. 1363.) When directed by the board to repair any highway in his district, the supervisor must proceed without unnecessary delay, and for that purpose is empowered to employ laborers, teams and obtain implements. (Sec. 1364.) If at any time during the year a highway becomes obstructed, the supervisor must “upon being notified thereof” forthwith cause the obstruction to be removed, and for this purpose he may order out such number of the inhabitants of the district as may be necessary. (Sec. 1372.) He must cause encroachments upon the highways to be removed. '(See. 1373.) The board may by order direct the county surveyor or any member of the board, or both, to inspect the condition of any highway before payment is made for work thereon. (Sec. 1387.) The board must keep a roadbook, containing a record of all proceedings and adjudications relating to the use, maintenance, change or discontinuance of roads and road districts and relating to road supervisors. (Sec. 2890.)

It thus appears that the agency ultimately responsible for [6] the care of public roads is the board of commissioners. This body acts as a unit. A majority of its members control its action. But this is not a reason why the individual members who are in the majority should not be held responsible for the result of a dereliction of duty. Under the provisions of the statute the general supervision of the. roads, which includes attention to necessary repairs upon those already made as well as the improvement of them, and the opening of new ones, is vested in the board. It must designate suitably districts and appoint a supervisor for each of them. He must act under the requirements of the law and the regulations prescribed by the board, and keep the roads clear of obstructions and in good repair. In case a road becomes obstructed from any cause, upon being notified, that is when he has actual knowledge of the fact or the'circumstances are such that notice must be presumed, he must at once cause the obstruction to be removed. To meet the exigency, ample means are put at his disposal. If he fails in his duty, one of two courses is open to the board, viz., it may order him to do his duty and thus compel performance, or it may remove him and substitute an efficient man in his place. Does the time never come when the duty to pursue one of these courses becomes imperative? Upon making the appointment, may the members of the board close their eyes to conditions which are certain to arise from time to time, demanding efficient action to guard the interests of the public generally and the safety of the individual citizen who had a right to expect them to discharge their duty? May they, knowing that a supervisor is grossly derelict in his duty, devest themselves of all responsibility to the individual members of the community by the claim that they owe service to the general public only, and that their duties are altogether discretionary? We think not. Clearly, the supervisor is liable under the provision of section 1372, supra,; for under it, when an emergency arises calling for action, his duty is made imperative. So, also, when through his dereliction conditions of which the members of the board must have notice are permitted to continue, imperiling the safety of the citizen, the obligation is upon them to act; in other words, to see that their appointee, the supervisor, or one appointed in his stead, discharges his official duty.

Under the facts appearing in the evidence, a prima facie case of liability is made against the defendant Zimmer, for failure to make the repairs by removing the obstruction, or, in case he could not do so, for failure to warn the public of the existing condition; and as against the other defendants, for failing to compel him to discharge his duty. At the trial all of the defendants may be able to show that the conditions were such that, with the means at their disposal, they were unable to make the necessary repairs. But the burden rests upon them to do so, the presumption being that they had such means. But even this would not excuse the omission to take suitable measures to give notice of the obstruction or to provide suitable barriers to prevent a traveler from being injured by it, if the facts show that such was the case.

The judgment is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

Mr. Justice Smith concurs.