29 S.E. 63 | N.C. | 1898
This is an action against the defendant, as county commissioner, to recover a penalty of $200, under The Code, section 711, for failing to construct a draw span in the county bridge across Tar River at Tarboro, which section declares a failure of duty to be a misdemeanor and makes the offender also liable to a penalty of $200.
On the lower border of the town a railroad bridge spans the river and 300 yards above is the county bridge in question, entering said town. Three miles above the plaintiff had located his cotton-seed oil mill and used a boat on said river to and from his mill for transportation of his material and products of the mill. Somewhere above the mill another railroad bridge spanned said river with a draw in it. The lower bridge had no draw, until the plaintiff sued and recovered damages, prior to the demand in the present case, when the draw was built. Prior to 5 March, 1895, it was the duty of the county commissioners (109) to consult and advise with the board of magistrates in such matters, which they did, and the board declined to construct the draw because it was unnecessary and would be oppressive to the taxpayers. After that date the duty devolved solely on the board of commissioners.
The plaintiff complained to the Engineering Department at Washington, D. C., and on notice a full hearing was had in July, 1895, when the Department decided that a draw must be put in, and as soon as practicable it was put in and accepted by the authorities.
It appeared that during six months or more of the year the water above the bridge was insufficient to float plaintiff's or other boats. There was conflicting evidence as to whether the river above the bridge was a navigable stream. *70
The plaintiff insists upon the above facts that the defendant was negligent and liable to the consequences imposed by said section 711 of the Code. It was proved by plaintiff that the defendant's character was "excellent — none better," and that he had been a faithful officer to the county for 16 years.
The defendant relies on the following facts and conditions as a defense:
1. That said bridge was erected and kept up more than a century without any draw in it and is well above the river.
2. That no attempt has been made to navigate the river above the bridge until plaintiff did so.
3. That said river is not stricti juris navigable, and in such cases it is the duty of the plaintiff at his own expense to construct the (110) draw by the express terms of The Code, section 3719.
4. That plaintiff transferred the question to the Engineering Department of the United States Government, and that, after full hearing and the decision was made, the defendant had the draw put in as soon as practicable, and the delay was reasonable.
5. That The Code (section 707 (15), 2053), requires that draws be provided only when and where the same "may be necessary to allow the convenient passage of vessels."
His Honor held that upon the evidence the plaintiff could not recover and directed a verdict for the defendant. This is the principal question.
Official corruption is not necessary to impose liability for neglect of duty to the public in the discharge of official duties. When gross negligence, intentional neglect and willful refusal are apparent and established, the penalty follows, and upon that ground the defendant was held guilty in S. v. Hatch,
From the evidence sent to this Court we are unable to see that the defendant's conduct was unreasonable. In view of the questionable navigable character of the river above the county bridge, he might well have hesitated, with the provision of The Code, section 3719, before him; and his prompt action in constructing the draw, as soon as the question was settled, excludes the idea of willful negligence or refusal to do his duty.
In England the common law rule of ebb and flow of the tides determines whether the stream is navigable, but in North Carolina (111) the rule is, if the water is sufficient to carry a sea vessel the *71
stream is navigable without regard to tides. In streams of less water, navigable only at certain periods, they constitute another class. S. v.Glen,
Looking through the matter we do not see any evidence amounting to gross carelessness or willful negligence, without which the defendant is not liable civilly or criminally, and, if the case had gone to the jury and a verdict of guilty returned, it would have been the duty of his Honor to set the verdict aside. The law allows some discretion in the board of commissioners by express terms of the statute, and we do not see any abuse of that discretion. His Honor properly directed a verdict of not guilty. This view renders any consideration of any other question unnecessary.
Affirmed.
Cited: S. v. Baum,