J. J. Nobles v. . T. H. Langly

BoydeN, J.

This was a civil action for damages, against an overseer of a public road, in which there was a bridge over a ditch or canal. The damage alleged was to the person of the plaintiff and to bis buggy and to a horse. The main allegation was, that the bridge over the canal was out of repair, and had been permitted to be out of repair for moro than ten days before the injuries complained of, had happened, and that these injuries for which this action had been brought, had been, caused mainly by the bridge over the canal on the road being, out of repair.

The testimony tended to establish the fact, that the bridge ■ was in bad order and in need of reparation, and had been so for more than ten days, before the injuries to the plaintiff happened.

•The defendant denied that it was his duty as overseer to build said bridge, or to keep the same in repair; and alleged that the owner of the swamp above where the canal liad been cut across the road, had cut the canal for the purpose of draining his swamplands above, and that ho had built the bridge and kept it in repair for some years. It was the duty of the owner of this land, and not the duty of the overseer, to keep said bridge in repair; and defendant offered one E. P. Daniel who testified that he had known the road and bridge well — had worked as a hand lor several years. Defendant then offered to prove by the witness that the ditch or canal over which the bridge was built was cut many years ago by the owner of the swamp above, in order to drain tho same; and that for some timo after, ihe proprietor of the swamp had kept up this bridge over said canal, and that only occasionally the overseer made the hands repair the same.

This evidence was rejected by the Court and the defendant-excepted.

By the Act of 1847, Rev. Cods. chap. 101, section 24, it is enacted, that when the proprietor of lands digs a ditch or canal across a public road, it shall be the duty of said owner or proprietor to build a bridge over the canal thus dug and to keep the same in repair.

It was also proved that the proprietor of the swamp above the canal was still living and the owner oí the swamp above. This can make no difference as this duty clearly would devolve upon the subsequent owner.

When this road was made a public road we are not informed: it might have been early in the settlement of the country.

We think the testimony offered, and rejected by His Honor, i tended to prove that it was the duty of the owner of the swamp . above and who cut this canal, not only to build this bridge, 'vbut likewise to keep said bridge in repair, and that the law ¡had not devolved this duty upon the overseer.

There was, therefore, error in rejecting this evidence. Let this be certified.

Pee Curiam.. Venire de novo.