Board of Commissioners v. Riggs

| Kan. | Jul 15, 1880

The opinion of the court was delivered by

Hórton, C. J.:

The only question presented in this case is, whether a county is liable for damages accruing from a defective and unsafe bridge, built by the county as a part of the public highway ? It is conceded by counsel that there is no express statute imposing any liability; therefore the question must be answered in the negative upon the authority of Beach v. Leahy, 11 Kan. 23" court="Kan." date_filed="1873-01-15" href="https://app.midpage.ai/document/beach-v-leahy-7883283?utm_source=webapp" opinion_id="7883283">11 Kas. 23, and Eikenberry v. Township of Bazaar, 22 Kan. 556" court="Kan." date_filed="1879-07-15" href="https://app.midpage.ai/document/eikenberry-v-township-of-bazaar-7884893?utm_source=webapp" opinion_id="7884893">22 Kas. 556.

Counsel suggest that if it be held that the case of Eikenberry v. Township of Bazaar, supra, is applicable, that in view of the decisions in House v. Montgomery Co., 60 Ind. 580" court="Ind." date_filed="1878-05-15" href="https://app.midpage.ai/document/house-v-board-of-commrs-of-montgomery-co-7042310?utm_source=webapp" opinion_id="7042310">60 Ind. 580, and in Wilson v. Jefferson Co., 13 Iowa, 181" court="Iowa" date_filed="1862-04-18" href="https://app.midpage.ai/document/wilson-v-jefferson-county-7092495?utm_source=webapp" opinion_id="7092495">13 Iowa, 181, and Huston v. Iowa Co., 43 Iowa, 181" court="Iowa" date_filed="1876-04-24" href="https://app.midpage.ai/document/state-v-haven-7096823?utm_source=webapp" opinion_id="7096823">43 Iowa, 181, this court ought to reexamine the question, on principle. Counsel further contend, that as this court has decided that municipal corporations proper, such as cities, are liable for damages resulting from the negligent exercise and control over the streets and sidewalks within their limits, without any statute imposing such liability, if follows logically that counties are equally liable. We are aware of the diversity in the decisions in respect to the liability of a county in neglecting to keep in repair bridges and highways, and the difficulty of stating clearly and satisfactorily the principle upon which to rest the distinction between the implied liablility of cities and counties. If the writer of this opinion deemed the question an open one in this state, and felt at liberty to pass upon the subject solely in accordance with sound reason, he would deny the liability of even cities in neglecting to exercise their control and care over streets and sidewalks, or for their imperfect execution of such power. Their implied liability, however, has been generally recognized by the decisions of ‘other states, and has been for a long time followed by this court, and ought not now to be abandoned because the reasons given for its original adoption are not satisfactory. (See Jansen v. City of Atchison, 16 Kan. 358" court="Kan." date_filed="1876-01-15" href="https://app.midpage.ai/document/jansen-v-city-of-atchison-7884167?utm_source=webapp" opinion_id="7884167">16 Kas. 358, and especially the remarks and authorities cited in brief of counsel of defendant in error, pp. 360, 375.)

The distinction between the implied liability of cities and of quasi corporations, like counties, has been recognized in this state by prior adjudications, and whether properly or not, we need not inquire, in view of the fact that a new examination of the question before us on principle convinces us of the entire correctness of our ruling in Eikenberry v. Township of Bazaar, supra, and the principle there announced is decisive against the claim of defendant in error.

The conclusions reached in House v. Montgomery Co., 60 Ind. 580, are not satisfactory to us.

In the late case of Kincaid v. Hardin Co., 11 Cent. L. J. 227, the supreme court of Iowa refused to extend the liability of a county to a case where a person was injured by reason of the negligent construction of a court-house. Yet the distinction in principle between an injury resulting from a defective county bridge, and one caused by a defective and improperly constructed court-house, is not very easily demonstrated. In the conclusion of the opinion, it is stated, that if the liability of quasi corporations is further extended in that state, it must inevitably lead to inextricable complications arising in actions for all possible negligent acts. This is virtually a confession that the rule previously adopted in that state as to the implied liability of counties, is a dangerous doctrine, and if followed to its logical results, would cause confusion worse confounded.

The judgment of the district court will be reversed.

All the Justices concurring.