73 Mo. 279 | Mo. | 1880
The case of Reardon v. St. Louis Co., 36 Mo. 555, is decisive of this case, and precludes plaintiffs
A few observations will.suffice to'show, that the distinction between the ease of Reardon v. St. Louis Co., 36 Mo. 555, and those cases in this State which hold municipal corporations liable in damages for a failure to keep their streets in repair, is founded in reason and •eminently just. It is an elementary principle, that no person, natural or artificial, can be charged with negligence by reason of a failure to do that which it is not the duty of such person to do. Negligence is an omission of duty. Where there is no duty, there can be no negligence. Counties are not charged with the duty of keeping the highways within their limits, in repair,, but municipal corporations are; hence, for injuries resulting from a failure to ■ make needeu repairs, cities in this State are held liable, and counties are not. County courts are charged by statute with the construction and repair of roads and bridges, but in exercising such functions, they are neither the agents nor the servants of the counties. Dillon on Munic. Corp., (2 Ed.) § 785. As illustrating this principle, though not directly in point, vide, Miller v. Iron Co., 29 Mo. 122. If I correctly understand the opinion in the case of Hannon v. ■ St. Louis Co., 62 Mo. 313, the principle is there asserted that, counties are not even liable for a neglect of such public duties as are imposed by general law upon all counties, •unless an action for such neglect be given by the statute; and the county was held' liable in that case upon the express ground that it had voluntarily assumed the perform