using modes of locomotion unusual or extraordinary in their character; 179 but a recovery may be had if the act complained of as a defense did not in any way contribute to produce the ininjury.18

(b) Violation of ordinance. The duty also operates in favor only of those who are using public ways for lawful purposes and in a lawful manner, and if injuries occur by reason of defects to those who may be at the time violating some ordinance in respect to the use of streets, or otherwise, where the violation directly contributes to the injury, they cannot recover.181

§ 993. When due.

The duty to maintain public highways in a reasonably safe condition for ordinary travel is not only limited in its nature and application both in respect to character of the highway and the persons using it, but also in connection with the condition when the liability will accrue. To entitle one to recover for an injury received on account of a defective highway, negligence must be shown on the part of the public corporation charged with the duty of maintaining the highway in a reasonably safe condition.

undertake to use those ways in an unusual or extraordinary manner, involving peculiar and special peril and danger, whether it be in respect to the kind or character of animals lead or driven, or the magnitude or construction of carriages used, or the bulk or weight of property transported."

180 Baker v. City of Portland, 58 Me. 199; City of Marshal v. McAllister, 18 Tex. Civ. App. 159, 43 S. W. 1043.

181 Baker v. City of Portland, 58 Me. 199; Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327; Mullen v. City of Owosso, 100 Mich. 103, 58 N. W. 663, 23 L. R. A. 693. But see City of Pueblo v. Smith, 3 Colo. App. 386, 33 Pac. 685. See, also, § 1056, post.

Negligence is the basis of the right to recover.182 It is not the existence of the duty or even of the defect, but negligent action of the corporation in respect to the performance of the duty which creates the cause of action.

(a) Special injury. Again, the person injured must not only show negligence on the part of the public authorities but further a special injury to himself which is the result of that negligence. Damage which he may have suffered in common with the public or others will not give him the right to recover.184

(b) Proximate cause. Negligence must be proven, a special injury, and further the fact that the breach of the duty complained of was the proximate cause of the injury complained of.185 It is sufficient in the greater number of states to establish the failure to perform the duty as the proximate cause although there may be other causes concurring or contributing to the injury.186 In

some states, however, the rule obtains that the defect complained of must not only be the proximate cause but the sole cause of the injury 187 and that a concurrent, casual connection of acts of the injured one, however slight, will destroy the right to recover damages.188

§ 994. Same subject; when imposed by statute.

Liability may accrue when specifically imposed by statute or upon the giving of notice of the injury to designated public authorities,189 the notice to contain the statement of facts required by law, usually recitals in respect to the place and time,190 the nature 191 and the extent of the injury.192 Statutes of this character are strictly construed in favor of the public corporation. and the right to recover will be lost if the statutory notice is not given in the manner and within the time so prescribed. 193 When a statute creates a liability against a public corporation where none before existed at common law, the rule of strict construction invariably applies.

$995. Defect occasioned by private persons.

Where a duty is imposed or exists in respect to the maintenance of public ways from defects, the cause of such defects is immaterial. They may be occasioned by the failure of the corporation.

Tex. Civ. App. 444, 59 S. W. 922;
Stickney v. Town of Maidstone, 30
Vt. 738.

187 Howe v. City of Lowell, 101
Mass. 99; Hawes v. Town of Fox
Lake, 33 Wis. 438. But see Lund
V. Inhabitants of Tyngsboro, 65
Mass. (11 Cush.) 563.

188 Moulton v. Inhabitants of Sanford, 51 Me. 127; Lavery v. Manchester, 58 N. H. 444.

189 City of Denver v. Williams, 12 Colo. 475, 21 Pac. 617; Winsor v. Tripp, 12 R. I. 454; Campbell v. Town of Fair Haven, 54 Vt. 336. See §§ 1037, and 1061 et seq., post. 190 City of Ottawa v. Black, 10

Kan. App. 439, 61 Pac. 985; Wilton v. City of Flint, 128 Mich. 156, 87 N. W. 86; White v. Town of Stowe; 54 Vt. 510.

191 Wood v. Borough of Stafford' Springs, 74 Conn. 437, 51 Atl. 129; Farrell v. Inhabitants of Oldtown, 69 Me. 72.

192 See §§ 485 et seq., ante, and §§ 1061 et seq., post.

193 Weber v. Town of Greenfield, 74 Wis. 234, 42 N. W. 101; Ziegler v. City of West Bend, 102 Wis. 17, 78 N. W. 164. But see Gitchell v.. Andover, 59 N. H. 363. See §§ 1061 et seq., post.

In the latter case

itself or through the acts of third parties. equally with the former condition the corporation against which a liability attaches will be held responsible.194

§ 996. Liability arising from construction.

The duty whenever existing, and a liability from a consequent failure to carefully and properly perform it arises, both in respect to the construction of the highway with its appurtenances and its condition. In the following sections will be considered the principles, so far as they can be stated, relating to the construction and following these a statement of the law in respect to the maintenance or condition of a highway. As stated in a previous

194 District of Columbia v. Woodbury, 136 U. S. 450; Robbins v. City of Chicago, 71 U. S. (4 Wall.) 657; District of Columbia v. Sullivan, 11 App. D. C. 533; Anderson v. City of Wilmington, 8 Houst. (Del.) 516, 19 Atl. 509; Parker v. City of Macon, 39 Ga. 725; City of Peoria v. Gerber, 168 Ill. 318, 48 N. E. 152; Gaff v. Hutchinson, 38 Ind. 341; Senhenn v. City of Evansville, 140 Ind. 675, 40 N. E. 69; Town of Centerville v. Woods, 57 Ind. 192; City of Evansville v. Senhenn, 26 Ind. App. 362, 59 N. E. 863; Town of Elkhart v. Ritter, 66 Ind. 136; Michigan City v. Boeckling, 122 Ind. 39, 23 N. E. 518; Duffy v. City of Dubuque, 63 Iowa, 171; Fletcher v. City of Ellsworth, 53 Kan. 751; Union St. R. Co. v. Stone, 54 Kan. 83; Kansas City v. Hart, 60 Kan. 684; Paducah R. & L. Co. v. Ledsinger, 23 Ky. L. R. 441, 63 S. W. 11; Wellcome v. Inhabitants of Leeds, 51 Me. 313; Hawkes v. Inhabitants of North Hampton, 116 Mass. 420; Lawrence v. City of New Bedford, 160 Mass. 227, 35 N. E. 459; Southwell v. City of Detroit, 74 Mich. 438, 42 N. W. 118; Campbell v. City of Stillwater, :32 Minn. 308; Welsh v. City of St.

Louis, 73 Mo. 71; Grogan v. Broadway Foundry Co., 87 Mo. 321; Hamford v. Kansas City, 103 Mo. 172, 15 S. W. 753; City of Natchez v. Shields, 74 Miss. 871, 21 So. 797; Sides v. Portsmouth, 59 N. H. 24; Davis v. City of Omaha, 47 Neb. 836, 66 N. W. 859; Byrne v. City of Syracuse, 79 Hun, 555, 29 N. Y. Supp. 912; Masterton v. Village of Mt. Vernon, 58 N. Y. 391; McGarry v. Loomis, 63 N. Y. 104; Rehberg v. City of New York, 91 N. Y. 137; McGuire v. Spence, 91 N. Y. 303; Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657; Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095; City of Zanesville v. Fannan, 53 Ohio St. 605, 42 N. E. 703; Aston Tp. v. McClure, 102 Pa. 322; Mills v. City of Philadelphia, 187 Pa. 287, 40 Atl. 821; White v. City of San Antonio (Tex. Civ. App.) 25 S. W. 1131; McCoull v. City of Manchester, 85 Va. 579, 8 S. E. 379, 2 L. R. A. 691; Raymond v. City of Sheboygan, 76 Wis. 335, 45 N. W. 125; McClure v. City of Sparta, 84 Wis. 269, 54 N. W. 337; Taake v. City of Seattle, 18 Wash. 178, 51 Pac. 362.

section,195 the duty is a varying one. The existence of the same defect either in construction or condition does not necessarily lead to the presumption of negligence on the part of the public corporation. This must be established as dependent upon the facts in each particular instance where a liability is claimed and necessarily where there will be found in the reports numberless cases which consider and pass upon particular circumstances. No attempt will be made to make an exhaustive citation of authorities. This is impossible in the space assigned to the subject in this work.

The law seems to be well established, as stated in sections 959 et seq., that ordinarily no liability follows from the adoption of a reasonable plan of sewage or drainage devised by reasonably competent and skillful officials or engineers. In respect to the adoption of a plan for the establishment or improvement of highways, the law is not so clearly settled and there will be found conflicting cases.196 Some hold that where a plan for the establishment or improvement of a highway has been devised by careful and reasonably competent officials or employes which is defective and by reason of such defects injuries occur, that no liability will follow.197 The adoption of the plan is held to be a legislative or a discretionary act requiring the application of judgment that, therefore, the usual rule of law applies which per

195 See § 988, ante.

196 Hughes v. City of Baltimore, Tournay, 243, Fed. Cas. No. 6,844. See, also, cases cited in the following three notes.

197 Northern Transp. Co. v. City of Chicago, 99 U. S. 635. A city is not liable for consequent damages caused by the proper construction of a tunnel lawfully authorized. Johnston v. District of Columbia, 118 U. S. 19; Bannagan v. District of Columbia, 2 Mackey (D. C.) 285; Sievers v. City & County of San Francisco, 115 Cal. 648, 47 Pac. 687; English v. City of Danville, 170 Ill.

131, 48 N. E. 328; Gould v. City of Topeka, 32 Kan. 485. If the plan is manifestly and unquestionably dangerous and unsafe a city is liable but not otherwise. Lincoln Tp. v. Koenig, 10 Kan. App. 504, 63 Pac. 90. Question for jury. Toolan v. City of Lansing, 38 Mich. 315; Foster v. City of St. Louis, 71 Mo. 157; Rhinelander v. City of Lockport, 60 Hun, 582, 14 N. Y. Supp. 850; Schreiber v. City of New York, 11 Misc. 551, 32 N. Y. Supp. 744; Urquhart v. City of Ogdensburg, 91 N. Y. 67; Alexander v. Brady, 61 Ohio St. 174, 55 N. E. 173.