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corporation having control of the structure or a part of it and charged with the duty of maintaining it,357 though there may be a joint liability.358 In cases of divided authority, the provisions of specific statutes usually control.359 Another defense sometimes interposed is that of want of funds. Public corporations are regarded as public agents not organized for their own pecuniary benefit or profit but for the advantage of the public. They are strictly limited by.law in the raising of revenues and in their expenditures. Where, by cause of such restrictions they are unable to properly repair or construct highways or any parts of them, clearly, no liability can follow. The lack of means lawfully at their disposal necessarily defeats a recovery, 360 while the possession of funds or the availability of a source of revenue for this purpose creates, ordinarily, a liability.301

§ 1032. Injuries through operation.

In the construction of a draw bridge or movable structure, injuries may be received through its negligent operation. The

357 Crowell v. Sonoma County, 25 Cal. 313; Daniels v. Intendent & Wardens of Athens, 55 Ga. 609; Village of Marseilles v. Howland, 124 Ill. 547, 16 N. E. 883; Village of Marseilles v. Kiner, 34 Ill. App. 355; State v. Inhabitants of Madison, 59 Me. 538; Quinlan v. Village of Manistique, 85 Mich. 22, 48 N. W. 172; Clapper v. Town of Waterford, 62 Hun, 170, 16 N. Y. Supp. 640; Sheridan v. Palmyra Tp., 180 Pa. 439, 36 Atl. 868.

358 Town of Tolland v. Town of Willington, 26 Conn. 578; Shaw v. Town of Potsdam, 11 App. Div. 508, 42 N. Y. Supp. 779; Armstrong County v. Clarion County, 66 Pa. 218.

359 Perkins v. Inhabitants of Oxford, 66 Me. 545; Clapp v. Town of Ellington, 87 Hun, 542, 34 N. Y. Supp. 283.

360 Covington County v. Kinney, 45 Ala. 176; People v. Adsit, 2 Hill

362

(N. Y.) 619; McMahon v. Town of Salem, 25 App. Div. 1, 49 N. Y. Supp. 310; Bullock v. Town of Durham, 64 Hun, 380, 19 N. Y. Supp. 635; Orth v. City of Milwaukee, 59 Wis. 336. But see Carney v. Village of Marseilles, 136 Ill. 401, 26 N. E. 491, where it is held that if the bridge becomes defective through the lack of funds, the village should close it to travel as it is unsafe. See, also, Taylor v. Davis County, 40 Iowa, 295.

361 City of Greensboro v. McGibbony, 93 Ga. 672, 20 S. E. 37; Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284). See, also, cases cited in preceding note, and § 1060, post.

362 Scott v. City of Chicago, I Biss. 510, Fed. Cas. No. 12,526; City of Boston v. Crowley, 38 Fed. 202; Greenwood v. Town of Westport, 53 Fed. 824, Id., 62 Conn. 575; Van Etten v. Town of Westport, 60

liability under these circumstances is not one which arises from a failure to perform the obligation of keeping this particular portion of the highway in a reasonably safe condition for travel. The duty to properly operate or keep in condition for safe operation is distinct from that of keeping the structure safe for travel; 363 but if there is a failure to maintain barriers or lights to prevent accidents when a draw is open, a liability may result for injuries to one using the street who, through the lack of such lights or barriers is injured while a draw bridge is open.

§ 1033. Liability as affected by notice.

The liability of public corporations in the construction or maintenance of public improvements, especially highways, may result from either an act of misfeasance or nonfeasance or, as the modern cases express it, from acts of commission or omission. Liability is based upon negligence in respect to the performance of a duty. Whatever duty may exist, it is not that of an insurer of a person or his property. It is simply that of exercising reasonable care and diligence in constructing and maintaining public property or public improvements in a reasonably safe condition for those entitled to use them in a proper manner. 364 A knowledge of the defeet whether in plan, construction or maintenance, must, therefore, precede the existence of a duty and knowledge is obtained through notice of the defect. In acts of commission, which will be considered in a later section, 365 no notice is necessary because the doing of the act by law charges a public corporation with notice

Fed. 579; Houston v. Police Jury of
St. Martin, 3 La. Ann. 566; Ripley
v. Chosen Freeholders of Essex &
Hudson Counties, 40 N. J. Law, 45;
Weisenberg v. Town of Winne-
conne, 56 Wis. 667. But see Mc-
Dougall v. City of Salem, 110
Mass. 21.

French v. City of Boston, 129 Mass. 592. No liability in the absence of express statutory provision. Godfrey v. Queen's County, 89 Hun, 18, 34 N. Y. Supp. 1052. No liability on the part of the county for injuries to a tug caused

by collision with a draw bridge through the negligence of the bridge tender although Laws 1892, c. 686, art. 1, §§ 2 and 3, declare counties to be municipal corporations.

363 Daly v. City of New Haven, 69 Conn. 644, 38 Atl. 397; Stephani v. City of Manitowoc, 89 Wis. 467, 62 N. W. 176.

364 Village of Warren v. Wright, 3 Ill. App. 602. See §§ 982 et seq., 1001 et seq., 1015 et seq., and 1026, ante.

365 See § 1040.

of the defect. In acts of omission or nonfeasance, a liability can only arise where there has been a failure to repair or remedy the defect within a reasonable time after knowledge of the defect. There can be, therefore, no recovery unless the corporation has had either actual or constructive notice of the defect and has failed within a reasonable time to remedy it.

366

§ 1034. Notice must be shown affirmatively by the plaintiff.

The existence of a liability depending absolutely upon the possession of knowledge of the defect by the public corporation, it is, therefore, necessary for the plaintiff to show affirmatively, in all cases, notice either actual or constructive of the particular defect causing the injury complained of 367 and the lapse of a reasonable

366 City of New York v. Sheffield, 71 U. S. (4 Wall.) 189; City of Deuver v. Saulcey, 5 Colo. App. 420, 38 Pac. 1098; Bill v. City of Norwich, 39 Conn. 222; Cunningham v. City of Denver, 23 Colo. 18, 45 Pac. 356; Village of Mansfield v. Moore, 124 Ill. 133, 16 N. E. 246; Ransom v. City of Belvidere, 87 Ill. App. 167; Town of Rosedale v. Ferguson, 3 Ind. App. 596, 30 N. E. 156; City of Ft. Wayne v. De Witt, 47 Ind. 391; City of Evansville v. Senhenn, 151 Ind. 42, 47 N. E. 634, 51 N. E. 88, 41 L. R. A. 728; Doulon v. City of Clinton, 33 Iowa, 397; Robinson v. City of Cedar Rapids, 100 Iowa, 662, 69 N. W. 1064; City of Atchison v. King, 9 Kan. 550; Jones v. Walnut Tp., 59 Kan. 774, 52 Pac. 865; Hoey v. Inhabitants of Matick, 153 Mass. 528, 27 N. E. 595; Parker v. City of Boston, 175 Mass. 501, 56 N. E. 569; Burleson v. Village of Reading, 110 Mich. 512, 68 N. W. 294; Handy v. Meridian Tp., 114 Mich. 454, 72 N. W. 251; Aben v. Ecorse Tp., 113 Mich. 9; Schweickhardt v. City of St. Louis, 2 Mo. App. 571; Young v. Webb City, 150 Mo. 333, 51 S. W. 709; Bonine

v. City of Richmond, 75 Mo. 437; Buckley v. Kansas City, 156 Mo. 16, 56 S. W. 319; City of York v. Spellman, 19 Neb. 357; Griffin v. City of New York, 9 N. Y. (5 Seld.) 456; Requa v. City of Rochester, 45 N. Y. 129; Jones v. City of Greensboro, 124 N. C. 310, 32 S. E. 675; Vandyke v. City of Cincinnati, 1 Disn. (Ohio) 532; City of Circleville v. Sohn, 59 Ohio St. 285, 52 N. E. 788; Mack v. City of Salem, 6 Or. 275; Ford v. Umatilla Co., 15 Or. 313, 16 Pac. 33; City of Philadelphia v. Smith (Pa.) 16 Atl. 493; Town of Franklin v. House, 104 Tenn. 1, 55 S. W. 153; Ward v. Town of Jefferson, 24 Wis. 342. But in West Virginia it is held that where the duty to repair highways is imposed, a liability will arise from the existence of defects irrespective of the question of notice. See the following cases: Evans v. City of Huntington, 37 W. Va. 601, 16 S. E. 801; Arthur v. City of Charleston, 51 W. Va. 132, 41 S. E.

171.

367 City of Boulder v. Weger, 17 Colo. App. 69, 66 Pac. 1070; City of Jackson v. Boone, 93 Ga. 662, 20

368

time thereafter within which it might have been remedied in the exercise of ordinary care and diligence as depending upon the circumstances of that particular case." It is also necessary for the plaintiff in actions of this character, to plead the fact of notice, for without notice, as already stated, in acts of omission, there can be no liability.369 The burden is, therefore, upon the plaintiff to both allege and prove notice or a reasonable knowledge as a condition precedent to the liability of a public corporation in acts of omission.370 The burden, however, is on the defendant to plead and prove that it did not have a reasonable time in which to make the repairs before the injury was received.371

1035. To whom given.

The giving of actual notice or the existence of constructive notice does not, in all cases, create a liability. Not only must the

S. E. 46; City of Joliet v. Meaghan, 22 Ill. App. 255; City of Decatur v. Fisher, 53 Ill. 407; City of Pleasanton v. Rhine, 8 Kan. App. 452, 54 Pac. 512; Whitney v. City of Lowell, 151 Mass. 212, 24 N. E. 47; Jones v. City of Greensboro, 124 N. C. 310, 32 S. E. 675; Otto Tp. v. Wolf, 106 Pa. 608; Loberg v. Town of Amherst, 87 Wis. 634, 58 N. W. 1048; Bailey v. Town of Spring Lake, 61 Wis. 227.

368 Lamb v. City of Cedar Rapids, 108 Iowa, 629, 79 N. W. 366; Richardson v. City of Marceline, 73 Mo. App. 360; Taylor v. Village of Mt. Vernon, 58 Hun, 384, 12 N. Y. Supp. 25; Rogers v. City of Williamsport, 199 Pa. 450, 49 Atl. 293; Town of Franklin v. House, 104 Tenn. 1, 55 S. W. 153; Morrison v. City of Madison, 96 Wis. 452. But see City of Covington v. Diehl, 22 Ky. L. R. 955, 59 S. W. 492.

369 Serrot v. Omaha City, 1 Dill. 312, Fed. Cas. No. 12,673. But if the facts alleged show prima facie the liability, it is not necessary to specifically allege that the city had nctice of the defect. Lord v. City

of Mobile, 113 Ala. 360, 21 So. 366. Sufficiency of averment. City of La Salle v. Porterfield, 138 Ill. 114, 27 N. E. 937; City of Nokomis v. Salter, 61 Ill. App. 150; Posey County Com'rs v. Stock, 11 Ind. App. 167, 36 N. E. 928; City of Madison v. Baker, 103 Ind. 41; Junction City v. Blades. 1 Kan. App. 85, 41 Pac. 677; Lewis v. City of Eskridge, 52 Kan. 282, 34 Pac. S92; Union St. R. Co. v. Stone, 54 Kan. 83, 37 Pac. 112; Hutchings v. Inhabitants of Sullivan, 90 Me. 131; Germaine v. City of Muskegan, 105 Mich. 213, 63 N. W. 78; Rusher v. City of Aurora, 71 Mo. App. 418; Vogelgesang v. City of St. Louis, 139 Mo. 127; Kusterer v. City of Beaver Dam, 52 Wis. 146. But see Carroll v. Allen, 20 R. I. 144, 37 Atl. 704.

370 City of Evansville v. Frazier, 24 Ind. App. 628, 56 N. E. 729; City of Indianapolis v. Mitchell, 27 Ind. App. 589, 61 N. E. 947; City of Indianapolis v. Tansell, 157 Ind. 463, 62 N. E. 35; Noble v. City of Richmond, 31 Grat. (Va.) 271.

371 City of Covington v. Diehl, 22 Ky. L. R. 955, 59 S. W. 492.

corporation have had notice of the defect for a reasonable time, but that notice must have been given or the knowledge possessed by that public official sustaining such a relation to the public corporation as to charge it with the duty intended to be enforced by the fact of notice.372 The notice must, therefore, be given to one whose legal duty it is to remedy or repair the defect complained of 373 or to one whose legal duty it is to inform those public officials charged by law with this duty.37 The giving of notice so as to create a liability depends upon the official duties of various officers as they are prescribed by law.375 There is no general principle

372 City of Savanna v. Trusty, 98 Ill. App. 277. Notice to a city treasurer, police magistrate or other municipal officer whose duties do not relate, in a way, to the care of streets, is not a notice to the city. Hazard v. City of Council Bluffs, 87 Iowa, 51, 53 N. W. 1083; Kansas City v. Bradbury, 45 Kan. 381, 25 Pac. 889; McFarland v. Emporia Tp., 59 Kan. 568, 53 Pac. 864; City of Topeka v. Noble, 9 Kan. App. 171, 58 Pac. 1015; Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166; Monies v. City of Lynn, 119 Mass. 273; Foster v. City of Boston, 127 Mass. 290. Notice to a janitor of a public school house of a defect will not charge the city. Moore v. Hazleton Tp., 118 Mich. 425, 76 N. W. 977. Cunningham v. City of Thief River Falls, 84 Minn. 21, 86 N. W. 763. Notice is binding on the municipal corporation when made to officers clothed with general powers and duties with reference to the control of corporate affairs or with specific duties in respect to the care of streets. City of Austin v. Colgate (Tex. Civ. App.) 27 S. W. 896; City of San Antonio v. Ball (Tex. Civ. App.) 66 S. W. 713.

373 City of Decatur v. Hamilton, 89 Ill. App. 561; Atchison County

Com'rs v. Sullivan, 7 Kan. App. 152, 53 Pac. 142; Madison Tp. v. Scott, 9 Kan. App. 871, 61 Pac. 967. Township trustee. Pease v. Inhabitants of Parsonsfield, 92 Me. 345, 42 Atl. 502. Notice to officer de facto sufficient. Rogers v. Inhabitants of Shirley, 74 Me. 144; Bunker v. Inhabitants of Gouldsboro, 81 Me. 188, 16 Atl. 543; Rogers v. Village of Orion, 116 Mich. 324, 74 N. W. 463. Notice not specifying location of defect although served on proper officer is not sufficient to charge the village with notice. Edwards V. Common Council of Three Rivers, 96 Mich. 625, 55 N. W. 1003, Saylor v. City of Montesano, 11 Wash. 328, 39 Pac. 653; Beall v. City of Seattle, 28 Wash. 593, 69 Pac. 12, 61 L. A. R. 583. But see Dewey v. City of Detroit, 15 Mich. 307.

374 Mareck v. City of Chicago, 89 Ill. App. 358; Morgan v. Fremont County, 92 Iowa, 644, 61 N. W. 231; Chase v. City of Lowell, 151 Mass. 422, 24 N. E. 212; City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742. But see Touhey v. City of Rochester, 64 App. Div. 56, 71 N. Y. Supp. 661.

375 Eastman v. Clackamas County, 32 Fed. 24; Cummings v. City of Hartford, 70 Conn. 115, 38 Atl. 916.

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