McCalla v. Multnomah County , 3 Or. 424 ( 1869 )

Boise, G. J.

The question presented td this court for determination is: Are the counties in this state liable for injuries to persons occurring by reason of bridges on county roads being out of repair ? This question must depend on the construction of our statutes on this subject, “that all county roads shall be under the supervision of the county court of the county in which such road is situated.” It is the duty of the county court to appoint supervisors in each road district; and the county court also has power to remove supervisors on failure to perform their duties, and they are made responsible to the court, and are the agents of the county. (See Statutes, 863, sec. 19.) On failure to perform his duty, a supervisor is liable to an action by the county for the use of the county; and as being an agent of the county, and acting under its authority and' direction. We think the county would be liable for his negligence in notrepairing a bridge, provided there is any liability in such cases. It is contended, that at common law there would be no such liability; and, that a person injured by a bridge out of repair, has no remedy, however clearly it be shown to have been occasioned by the negligence of the road supervisor. This may be true at common law, but the statute of this state (page 235, sec. 317) provides: “An action maybe maintained against a county, or other of the public corporations mentioned in section 316, either upon a contract made by such county, or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff, arising from some act or omission of such county, or other public corporation.”

We think that when the county erects a bridge on a public highway, to be used for travel, they are responsible under this statute for negligence in allowing the same to be out of repair, whereby injury accrues to any person traveling over it, who is himself not guilty of negligence. What would be negligence in the county, or in the party injured, are questions for a jury, to be determined in each particular case, and in this case they were found favorably to the plaintiff.