Rusch v. City of Davenport

Stockton, J.

— The first question suggested, is whether the suit should not have been against the road district as defendant, instead of the city of Davenport.

The act of January 22, 1853, provides, that “ every road district shall be responsible for all damages sustained by any person, in consequence of defects in the roads and *450 bridges in said district.” Section 17. Although road districts are thus made liable for damages resulting from the defective condition of their roads and bridges, yet, as they have not been made corporate bodies, as counties and school districts have been, and as no express provision is made for their being sued, a question might be well made, whether a suit can be brought against a road district, as defendant, by virtue of the above recited provision. Without determining this question, however, we think the suit in this instance, was properly brought against the city.

The act of January 22, 1855, provides, that “the city of Davenport shall constitute one road district, to be under the control and superintendence of one or more street commissioners, to be appointed by the city council.” Session Acts, chapter 57, section 4. Something more was intended by this act, than merely to define the boundaries of a road district, and to declare that the same should be co-extensive with the limits of the city of Davenport. The city as incorporated, is by it constituted a road district, with all the liabilities of other road districts. Power is given to it of appointing its own commissioners, or supervisor of roads, and of receiving all taxes for road purposes, levied by the county authority upon the property within the city; which it is required to expend upon the streets of the city, and the roads leading to it. Act of 1855, sections 4 and 5. We think that there is no road district distinct from the city. The boundaries of the road district are the boundaries of the city. The city has not an existence as a corporation distinct from its existence as a road district, and no different liability is created. The city is withdrawn from the operation of the general road law, so far as to take away from the township trustees, the power of sub-dividing it into road districts, and appointing supervisors of roads. The city is made one district, with the power of appointing its own officers. Act of January 22, 1853, sections 1 and 2.

The court was asked by defendant to charge the jury *451 that- “ the plaintiff must show, not only the defect of the bridge, and the injury resulting therefrom, but ho must further show that the accident did not happen from'his own negligence.” The court refused to give the instruction as asked, and instead thereof charged the jury as follows: “ That they must be satisfied that a defect existed in the bridge, which defendant was bound to keep in repair, and tiiat the accident happened in consequence of the defect; and if they believe the bridge was so defective as to be unsafe for crossing; that the plaintiff in attempting to cross used ordinary care and prudence, and that the accident happened in consequence of the defect, they must find for the plaintiff; but if the defect was manifest and apparent — if plaintiff knew of the defect, or could have seen the same, by using ordinary care and prudence, and imprudently and carelessly drove his horse upon the same, and the accident happened in consequence of such imprudence and carelessness — or if the accident could have been1 avoided, by the exercise of ordinary care and prudence, they must find for the defendant.”

It is not important that an instruction should be given in the very language in which it is asked ; if given in substance, it is sufficient. The court need not adopt the language of the counsel, in charging the jury. It may put aside the instructions asked, and charge them in its own language; and the party can only assign for error, its incorrect ruling of the law. The court must, of course, be permitted to choose the language in which his charge is given.

We think there is no doubt, but that the burden of proof was on the plaintiff to show to the jury, that the accident happened without any want of reasonable care on his part. Whether the action be at common law, against an individual, for placing an obstruction in a highway, whereby the plaintiff has suffered damages, or under the statute, against the town or road district, for injuries sustained by reason of some defect or want of repair ; in either case, the plaintiff in order to recover, must show *452 that he did not contribute to the injury by his own fault, or by the want of ordinary care. Angelí on Highways, Section 290.

In Butterfield v. Forrester, 11 East, 60, Lord Ellenborough said: “Two things must concur to support this action; an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it, on the part of the plaintiff.”

In Smith v. Smith, 2 Pick., 623 , the court says : “ It cannot be maintained, unless the plaintiff can show that he used ordinary care; for, without that, it is by no means certain that he himself was not the cause of his own injury.” “ Where he has been careless, it cannot be known whether the injury is wholly imputable to the obstruction, or to the negligence of the party complaining.”

In Lane v. Crombie, 12 Pick., 177 , the court say : “We consider the rule to be now well settled, that to enable the plaintiff to recover, under such circumstances, he must not only show some negligence on the part of the defendant, but ordinary care and diligence on his own part.”

In Harlow v. Humister, 6 Cowen, 189, the court say:— “Negligence by the defendant, and ordinary care by the plaintiff, are necessary to sustain the action.”

The rule laid down in Butterfield v. Forrester, has been qualified by later decisions, in which it has been held that it did not hold good where the plaintiff, though negligent, could not, by the exercise of ordinary care, have avoided the injury. Bridge v. G. I. Railway Co., 3 M. & W., 264. Nor where the fault of the defendant concurred with that of the plaintiff to produce the injury. Davies v. Mann, 10 M. & W., 545. Nor where, though there has been mutual neglect, the evidence shows intentional wrong. Brownell v. Hagler, 5 Hill, 282 .

Although the burden of proving the exercise of ordinary care, rests on the plaintiff, yet it need not be directly shown, and may be inferi’ed by the jury froxn the circumstances of the case. French v. Brunswick, 8 Shepley, 29; Foter v. Dixfield, 6 Ib., 380; Coff v. Standish, 2 Ib., 198. *453 In Lane v. Crombie, the court, after charging the jury as stated above, further, directed them, that the burden of proof was upon the plaintiff to show negligence in the defendant, that being the gist of the action; but that when,, the defendant relies upon the fact that the plaintiff conducted himself carelessly, the burden of proof was upon the defendant, to show that the plaintiff had not used ordinary care. The latter part of this direction was held to be incorrect in point of law, the court saying that the burden of proof was upon the plaintiff, to show that the accident was not occasioned by her own negligence. 12 Pick., 177 .

The district court, in this case, did not, in so many words, charge the jury that the burden of proof was upon the plaintiff, to show that the accident happened without any want of reasonable care on his part; yet, the instruction given, amounts in effect to that. The court, indeed, says nothing as to the burden of proof; but the jury are directed, that in order to find for the plaintiff, they must believe from the evidence, that in attempting to cross the bridge, he used ordinary care and prudence ; that if plaintiff knew of the defect, or if it was apparent, and could have been seen by him, with ordinary care and prudence, and he imprudently and recklessly drove his horse upon the same, and the accident happened in consequence of such imprudence and carelessness; or if it could have been avoided by the exercise of ordinary care and prudence, they must find for the defendant.

"VVe think the defendant cannot reasonably complain of this charge of the court. It clearly places upon the plaintiff, the burden of showing the exercise of reasonable care and prudence, before he can recover. To constitute error, it should appear that the court required the defendant to assume this burden on himself. No such fact appears by the record. After the evidence on both sides was given to the jury, the question of the burden of proof does not seem, to us to have been of any practical importance. The reasonable care to bo proved by the plaintiff, as before re *454 mai’ked, need not be directly shown, and may be inferred by the jury from the circumstances of the case. Angell on Highways, section 290; Thompson v. Bridgewater, 7 Pick., 188 .

The degree of care required by the plaintiff, was such care as persons of common prudence generally exercise ; and whether he had exercised such degree of care, was a question of fact, or a mixed question of law and fact, to be determined by the jury, under the direction of the court. Negligence is the omitting to do something that a reasonable person would do, or the doing of something that a reasonable person would not do. Consequently, we think the court correctly charged the jury, that if the plaintiff knew of the defect, or could have seen the same, by the exercise of ordinary care ; and that he imprudently and carelessly drove his horse.upon the bridge, and the accident occurred in consequence of such imprudence and carelessness; or if the accident could have been avoided, by the exercise of ordinary care and prudence, they must find for the defendant. There may have been negligence in the defendant, in suffering the bridge to be out of repair, as well as in the plaintiff, in driving over it without reasonable care ; from either of which causes, the accident might have resulted. An accident may happen with the most careful driver, if the defect is in the bridge;.and though the bridge may be in a complete state of repair, even its completeness may be no sufficient security against reckless, or even careless driving.

By the sixth instruction of defendant, the court was asked to charge the jury that, “the city of Davenport, as a road district, was not bound to keep the bridge in suitable condition for crossing, for a greater width than sixteen feet.” In support of the correctness of this instruction, the defendant cites section 517 of the Code, which provides that “ bridges are parts of the public highways, and must be not less than sixteen feet wide.” The district court, however, refused to give the instruction, and we *455 think not incorrectly. The term bridge, is a comprehensive one, and embraces every structure in the nature of a bridge, over any obstruction to the highway, whether a river, ditch, or other passage for water. Angelí on Highways, section 35, 37. Where the statute, however, says that a bridge must not be less than sixteen feet wide, we are not to understand that the road district is in no case required to construct its bridges more than sixteen feet wide. The necessities of travel may not, in some instances, require the bridge to be wider. A bridge, like a road, which would be safe and convenient in the country, might be totally unsafe and inconvenient in the city. And this distinction as to width, must apply to other conditions of the bridge, or street. A street in a crowded city, thronged with carriages, wagons, and carts, with other streets crossing the same, and all used for purposes of travel and transportation, by vehicles going necessarily at different rates of speed, would furnish very inadequate accommodation for the demands of commerce and business, if supplied with a bridge only sixteen feet wide. Angelí on Highways, section 259. And although a road district may not be obliged to keep the whole of a highway, from one boundary to another, free from obstruction, and fit for the use of travelers, as was held in Howard v. N. Bridgewater, 16 Pick., 189 ; yet, as commerce and safety are the essential conditions of a well maintained highway, both at common law and by statute, if a bridge is built forty-eight feet wide, where the exigencies of travel seem to require it, it must be kept in good condition for its whole width. Such was the ruling of the court in this instance. And the rule of law, as applied to a bridge over a water course upon a road little frequented, is stronger in a city, or on a road much traveled, and particularly under the circumstances as put by the court — that if the defendant had dug the ditch to drain the surplus water to the Mississippi river, and had covered the ditch at the street crossing with boards, for the whole width of the street, it was the duty *456 of the city to keep it in a suitable condition for crossing upon any part of it.

This obligation of the road district, extends not only to the ordinarily traveled path of the highway, but also to the gutters and margins, and in cities, to the sidewalks. Angell on Highways, section 260. Certainly, if the defendant dug the ditch, for its own convenience, across a public street, it was its duty to provide a safe and convenient crossing for it, and to keep it in repair throughout that part of the street used for travel. If the ditch was bridged for the whole width of the street, travel was invited upon it for the whole extent of the bridge. Itis no sufficient answer to say, that sixteen feet in the center of the bridge was in good repair, if the remainder was defective. The city is not only bound to keep the bridge in good repair as far as it is built, but it must afford a safe and convenient crossing for the ditch, for the whole width of the street.

Judgment affirmed.