The grounds of the motion were: 1. Insufficiency of the evidence to justify the verdict; 2. That the verdict was against law; 3. That material errors of law, to which respondent excepted, occurred at the trial; and, 4. That the damages were excessive, appearing to have been given under the influence of passion and prejudice. There were many specifications of alleged insufficiency of evidence to support the verdict. The order granting the motion was in general terms. Counsel for the plaintiffs concede that if the order is capable of rational support upon any of the grounds mentioned in the motion, it should stand, but they contend that all of the alleged reasons for granting the motion were without merit. In their brief, counsel say the court informed them that the motion for a new trial was granted because of errors of law in admitting and rejecting testimony. This, however, does not appear from the record, and even if the court had by a written opinion given reasons for the action taken in making the order for a new trial, we would be compelled to sustain the order if it could have been granted with

a public road at night, when it was so dark that he could not see the same, and brought suit against the county commissioners and the road supervisor, claiming that it was the duty of the supervisor to see that the roads in that district were kept in a reasonable state of repair, and in case of any defects therein to warn the public thereof until repaired. He further alleged that it was the duty of the commissioners to see that the supervisor performed his duty in this respect, and, in case he did not do so, to cause reasonable repairs of defective conditions to be made, and to advise the public of such defects prior to their repair; and that said defendants negligently permitted the defect that caused his injury to remain in the road, and failed to guard the same or advise the public thereof. The washout was shown to have occurred more than three months before the injury. By statute (Mont. Rev. Codes 1907, §§ 1356-1364, 1372, 1373), the board of county commissioners were given general supervision and control of the highways, and were authorized to appoint a supervisor who, under the direction of the commissioners, was required to take charge of the highways, keep them free

from obstructions and defects. For failure to perform his duties imposed by law or the rules of the commissioners, the latter had power to remove him. When directed by the commissioners to repair any highway in his district, the supervisor was required to proceed to do so without unnecessary delay; and if a highway became obstructed he was required, upon being notified thereof, to forthwith cause the obstruction to be removed, and for these purposes he was authorized to employ laborers, teams and implements. At the close of plaintiff's evidence the trial court rendered judgment of nonsuit. On appeal, however, the judgment was reversed and the cause remanded for new trial, the court holding that a prima facie case had been made against the supervisor for failure to remove the obstruction, or, in case he could not do so, for failure to warn the public of the condition, and against the commissioners for failing to compel the supervisor to perform his duty. Further, the court said: "At the trial all the defendants may be able to show that the conditions were such that, with the means at their disposal, they were unable to make the necessary repairs. But the burden

propriety upon any of the grounds assigned. (Morgan v. Robinson Co., 157 Cal. 351 [107 Pac. 695].)

There was a conflict of testimony upon the matter of notice to defendant Pridham. The duties of a road commissioner are defined by § 2645 of the Political Code, which is in part as follows: "Road commissioners, under the direction and supervision and pursuant to orders of the board of supervisors, must:

"1. Take charge of the highways within their respective districts. "2. Keep them clear from obstructions, and in good repair.

"3. Cause banks to be graded, bridges and causeways to be made when necessary, keep the same in good repair, and renew them when destroyed.

Appellants insist that there was no substantial conflict because of the length of time in which the yawning waterway had existed. Brand Boulevard, which is the road involved here, was accepted by the board of supervisors on November 22, 1909. Mrs. Wurzburger was injured

about a half year later, on May 27, 1910. Mr. Pridham testified that at no time prior to the accident had he any knowledge or information regarding the unsafe condition of the sidewalk in question. He also testified that the Tropico road district in which Brand Boulevard lay was territorially very large, and that there were about seventy-five miles of worked roads in said district. On his behalf counsel here maintain that he is not in the same position as a street superintendent in an incorporated city, and that therefore proof of the notice to him, either actual or imputed, of the condition of the street, ought to be very clear. Doeg v. Cook, 126 Cal. 215 [77 Am. St. Rep. 171, 58 Pac. 707], is cited by appellants in support of the doctrine that the existence of the imperfection in the road and the duty of the public officer to keep the highway in repair being shown, his responsibility for any injury caused by a fall of a pedestrian into the cavity in question, follows as matter of course. It is to be remembered, however, that Doeg v. Cook, and also Merritt v. McFarland, 4 Cal. App. 391, [88 Pac. 369], were both cases

cause of action within the rule that highway commissioners can only be held personally liable for damages to persons or property with respect to the performance of their official duties when under the guise or pretense of performing a duty they perform some ministerial duty in a wrongful and negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty. Judg ment was accordingly reversed and the cause remanded. Van Middlesworth v. Hill, 161 Ill. App. 592 (1911).

IV. Removal of Bridge.

The road overseer of a highway district employed another to repair a defective highway which consisted of replacing an old bridge or culvert with a new one. Such employee removed the old bridge, and left the excavation created by such removal open and exposed during the night, without guards, lights or other warnings to the traveling public. Plaintiff, traveling along that road in his automobile during the darkness of the night, ran into such ditch or excavation, and received the injuries complained of, and to recover for which he sued both the road over

seer and the employee. Plaintiff's complaint alleged negligence on the part of both defendants. The trial court dismissed the action on the ground that the complaint failed to state a cause of action against either defendant. On appeal this ruling was reversed, the court holding that defendants were liable for their negligence in repairing highways which resulted in injury to another, and this regardless of the fact that the towns were not liable for injuries caused by defective highways. Tholkes v. Decock, 125 Minn. 507, 52 L. R. A. (N. S.) 142n (1914).

V. Unguarded Culvert.

Plaintiff was driving a horse and wagon along a public road in a city, and stopped near the right side of the road to direct several persons in an automobile in regard to where they wanted to go. There was a culvert twenty-six feet long at this point under the road, and at the side on which plaintiff had stopped there was an embankment or abutment eight or ten feet high. The automobile had stopped at the other side of the road, and plaintiff's horse was standing still. Just after she answered the chauffeur's in

in which the injuries that were the subject of litigation occurred within the limits of municipalities, and in both of those cases the negligence charged against the public officer was of a gross character. Mr. Justice McFarland in his concurring opinion in the former of these cases said that "a street commissioner or road overseer could be held to the exercise of only a reasonable degree of care." This is the true rule and the question what constitutes "a reasonable degree of care" is primarily one for the jury, but it is also a question which the trial court may consider in passing upon a motion for a new trial. (Morgan v. Robinson Co., 157 Cal. 351 [107 Pac. 695].) The degree of care exacted from a road commissioner in a rural district is quite different from that imposed upon a street superintendent in a city, and consequently the requirements respecting notice to persons charged with the repairing of rural roads are different from those governing the same subject-matter in relation to urban officers. In Elliott on Roads (3d ed.), § 497, the rule is thus expressed:

quiry, plaintiff spoke to her horse, and at the same time felt the wagon slipping toward the embankment. Before she had time to save herself, plaintiff's horse and wagon slid over the embankment into the water of the stream below, carrying her with them and seriously injuring her. This end of the culvert was not guarded in any manner, except that a few bushes and vines had grown over the end and down the side.

Plaintiff filed suit to recover for her injuries against the highways commission of the county, and at the conclusion of the testimony given in her behalf verdict was directed for defendant. The commission was given control by statute (Md. Acts 1904, c. 465, as amended by Acts 1908, c. 495), over the highways and bridges of the county, with power to sue and be sued in relation thereto, and was required to keep them in repair and reasonably safe condition for travel. The statute further provided: "For any negligence or breach of the duties imposed by this subtitle, said commission shall be liable in damages at the suit of the person or persons injured thereby." Held, that the case should have been submitted to the jury, and judgment was reversed

and the cause remanded. Roth v. Highways Commission Baltimore Co., 115 Md. 469 (1911).

VI. Creek Ford.

Plaintiff for her cause of action alleged that defendants were duly qualified as county commissioners; that a certain public road at the time in question was and had been for several months past in a dangerous condition at a point where it crossed a creek, and was a menace to the public traveling thereon because of the great need of a bridge over said creek, which fact was well known to defendants, who negligently and wantonly and without due regard to the safety of the public, allowed the same to remain in such condition; that defendants knew of the dangerous condition of said road and such need of a bridge and had assumed the responsibility therefor, and had agreed to build a bridge at such place and had let a contract for the construction of said bridge, but negligently and recklessly failed to have said bridge built for a long period of time after the contract therefor was let, to wit, for the period of about six months, well knowing that the safety of the public

"The difference in the extent of the servitude, in the authority of the local officers and in the nature and situation of rural roads, supplies strong reasons for discriminating actions against cities and towns from actions against counties and townships to recover damages for special injuries caused by negligence in constructing and maintaining roads and streets. In the case of a city, the territory is comparatively small, the streets are in almost constant use, the officers more numerous, the means of improving and repairing are at ready command, the necessity for vigilance and care is great, and the means of knowledge easily attainable, whereas in the case of a sparsely inhabited rural district it is essentially different. Negligence is seldom absolute, for whether an act is or is not negligent generally depends upon attendant facts and circumstances. What would be ordinary care in a country district, and in maintaining a secluded highway, may not be care of any reasonable degree in a populous city or in maintaining a much traveled street. In respect to the question of notice, which is often a conspicuous element

was imperiled by this long delay; that while attempting to cross the said creek at said point, plaintiff drove her horse into said ford, when her horse, on account of the dangerous condition of said ford, lost his life, to her damage in the sum of three hundred dollars. In sustaining a judgment rendered in favor of defendants on demurrer to the complaint, the court held that the complaint stated no cause of action because there was no averment that defendants acted or failed to act "corruptly or of malice;" that the case presented was one involving the exercise of discretionary powers, and that in such case, in the absence of statutory provision, even ministerial officers are not liable to suit by individuals without an averment of that kind. Templeton v. Beard, 159 N. C. 63 (1912).

VII. Uneven Grade at Street Intersection.

Action was brought to recover damages for personal injuries alleged to have been due to official negligence of defendant in his capacity of superintendent of streets. It appeared that a certain avenue had been graded by a contractor and the work accepted by

defendant; that at the place of the accident the grading of the avenue left it some four or five feet below the surface of an intersecting street, which had not been graded or improved; that no lights or guards were placed at such place, although defendant knew of its condition; that about 7:30 o'clock on the evening in question plaintiff was walking along said street, and that she walked or fell from said street into said avenue where the two intersected as stated, and was injured. By provision of the charter of the city in which the accident happened (Cal. St. 1889, pp. 670, 672), the board of public works was given control and supervision of the streets of the city, and such board was authorized when deemed necessary to appoint a superintendent of streets, "whose duty it shall be to see that the laws, ordinances, orders and regulations relating to public streets and highways be fully carried into execution, and that the penalties thereof are rigidly enforced." In reversing a judgment in favor of plaintiff, the court held that, under the provisions of the charter, the defendant was not required, even though he had personal notice of the dangerous condition of the