125 Minn. 507 | Minn. | 1914
Defendant DeCock is the road overseer of the highway district in which he resides, charged with the statutory duties pertaining to that
It is thoroughly settled law in this state that towns are not liable for injuries resulting from defects in the public highways, whether such defects arise from the nonfeasance or misfeasance of the township officers, except perhaps in the instances involved in Peters v. Town of Fergus Falls, 35 Minn. 549, 29 N. W. 586, as the rule of that case was explained and limited in Weltsch v. Town of Stark, 65 Minn. 5, 67 N. W. 648. The original case holding to the rule of nonliability, and distinguishing between town and other municipal corporations (Altnow v. Town of Sibley, 30 Minn. 186, 14 N. W. 877, 14 Am. Rep. 191) has been uniformly adhered to in subsequent cases. 2 Notes on Minn. Reports, 375. But the further question, the
The liability of public officers for the negligent failure to discharge ministerial duties expressly imposed upon them by law, in consequence of which injury is suffered by an individual member of the community, is well settled. The general rule is tersely stated by Mr. Justice Bunn in Howley v. Scott, 123 Minn. 159, 143 N. W. 257, and as there laid down is followed and applied by practically all the courts. 23 Am. & Eng. Enc. (2d ed.) 377; 2 Sherman & R. Neg. 303, et seq.; County Comm. v. Duckett, [20 Md. 468] 83 Am. Dec. 557, and note. 1 Dillon, Mun. Corp. (5th ed.) § 438. This is true notwithstanding the fact that the county, town, or other municipality which they may represent is not responsible at the suit of a private person either for their nonfeasance or misfeasance. The wrong of the officer is not the wrong of the municipal subdivision he may represent, but that of the officer, and he alone is responsible therefor, except perhaps where by law the municipality is equally liable. The county is not responsible to private persons for the torts of its sheriff, county auditor or other officer, yet the officer himself, for his negligence in respect to the performance of his ministerial duties, is liable to any person who may suffer in consequence of such neglect. Rosenthal v. Davenport, 38 Minn. 543, 38 N. W. 618; Selover v. Sheardown, 73 Minn. 393, 76 N. W. 50, 72 Am. St. 627. And, with this general rule of liability in mind, it is a little difficult to conceive of a logical or consistent theory on which town road officers may be exempted therefrom. Their situation is precisely like that of other public officers who are liable though the municipality they represent is not, and can be relieved only by declaring in their favor an exception to the rule for which we find no sufficient reason. It is the wrongful conduct of the officer of which complaint is made, and to hold him answerable therefor, accords to the injured party the remedy guaranteed by the law of the land, whereas, to relieve
And, moreover, we think the authorities sustain the rule of liability in such cases. It is true that in -Kentucky the contrary is held to be the law of that state. Schneider v. Cahill (Ky.) 127 S. W. 143, 27 L.R.A.(N.S.) 1009. But liability is affirmed in California, New York and Wisconsin. Doeg v. Cook, 126 Cal. 213, 58 Pac. 707, 77 Am. St. 171; Bennett v. Whitney, 94 N. Y. 302; Hover v. Barkhoof, 44 N. Y. 113; Piercy v. Averill, 37 Hun, 360; Robinson v. Rohr, 73 Wis. 436, 40 N. W. 668, 2 L.R.A. 366, 9 Am. St. 810. In the last case cited it was expressly held that the city there involved was not liable for negligence in the work of repairing a bridge, but recovery against the officers having charge o.f the work was granted, and the opinion of the court clearly states the legal basis for that result. The question was squarely presented in the California case cited and liability on the part of the officers affirmed. The New York cases do not appear upon their face to have involved the precise question, but it is pointed out in the Piercy case, supra, that in Ben-net v. Whitney, supra, the charter of the municipality expressly exempted the corporation from liability for defects in its streets, and the court, with that exemption before it, held that the officers
We accordingly hold that the fact the towns of the state are not liable for defects in their roads or highways, or for the negligence of the officers thereof in the case of the same, does not relieve such officers from the consequences of their negligence in exposing the traveling public to injury from defects occasioned in the affirmative act of repairs. The authorities seem to differentiate to some extent between acts of nonfeasance, that is, a failure to make repairs when needed, and positive acts of negligence in making such repairs, or misfeasance. We do not deem it necessary to discuss this phase of the question. It is unnecessary. We have here affirmative misconduct, and, according to the allegations of the complaint, gross negligence on the part of defendants; in attempting to repair the road in question, they removed a culvert therein and left exposed over night, without warnings of any kind, the trench across the roadway which was a trap to those traveling upon the road, and inevitably likely to cause them serious injury. In such a case there can be no serious question of liability. Nor do we consider what fact or facts might or might not relieve defendants or either of them from liability.
Order reversed.