L

diana,

60

65

66

58

67

72

63

68

64

69

Iowa, Kansas, 57 Kentucky, Louisiana, Maryland, Montana, 61 Minnesota,62 Mississippi, Missouri, Nebraska, Nevada, North Carolina, Ohio, Oregon, Pennsylvania,70 Tennessee, Texas, Utah, Virginia,74 Washington, and West Virginia.76 Under the lead of Massachusetts, where this subject has been often and ably considered, the following states have adopted the contrary view: Arkansas, California, Connecticut,80 Maine,81 Michigan, 82

78

75

7.9

55 City of Goshen v. England, 119 Ind. 368, 21 N. E. 977, 5 L. R. A. 253.
56 Beazan v. Mason City, 58 Iowa, 233, 12 N. W. 279.

57 Kansas City v. Bermingham, 45 Kan. 212, 25 Pac. 569.

58 Greenwood v. Louisville, 13 Bush (Ky.) 226, 26 Am. Rep. 263.

59 Cline v. Railroad Co., 41 La. Ann. 1031, 6 South. 851.

60 City of Baltimore v. Marriott, 9 Md. 160.

61 Sullivan v. Helena, 10 Mont. 134, 25 Pac. 94.

62 Welter v. St. Paul, 40 Minn. 460, 42 N. W. 392, 12 Am. St. Rep. 752.

63 Whitfield v. Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A.
834, 14 Am. St. Rep. 596.

64 Haniford v. Kansas City, 103 Mo. 172, 15 S. W. 753.
65 City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41.

66 McDonough v. Virginia City, 6 Nev. 90.

67 Meares v. Wilmington, 31 N. C. 73, 49 Am. Dec. 412.

68 Village of Shelby v. Clagett, 46 Ohio St. 549, 20 N. E. 407, 5
L. R. A. G06.

69 Farquar v. Roseburg, 18 Or. 271, 22 Pac. 1103, 17 Am. St. Rep. 732.
70 Borough of Brookville v. Arthurs, 130 Pa. 501, 18 Atl. 1076.
71 City of Knoxville v. Bell, 12 Lea, 157.

72 City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517.

73 Levy v. Salt Lake City, 3 Utah, 63, 1 Pac. 160.

74 McCoull v. Manchester, 85 Va. 579, S S. E. 379, 2 L. R. A. 691;

Shearer v. Town of Buckley, 31 Wash. 370, 72 Pac. 76.

75 Hutchinson v. Olympia, 2 Wash. T. 314, 5 Pac. 606.

76 Moore v. Huntington, 31 W. Va. 842, 8 S. E. 512.

77 Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Hill v. Boston, 122 Mass. 344, 23 Am. Dec. 332.

Ts Ft. Smith v. York, 52 Ark. 85, 12 S. W. 157.

79 Arnold v. San Jose, 81 Cal. 618, 22 Pac. 877.

80 Beardsley v. Hartford, 50 Conn. 529, 47 Am. Rep. 677.

81 Aldrich v. Gorham, 77 Me. 287.

82 City of Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450. But

ING.CORP.-27

New Hampshire, New Jersey, 84 Rhode Island,85 South Carolina, and Wisconsin.88 The Supreme Court of

Vermont,

the United States recognizes its duty to follow the decisions of the highest court of each state in regard to municipal liability for tort therein.89

REASONABLE CARE OF STREETS.

140. The common law requires every municipal corporation to exercise reasonable care to make and keep its streets safe for all ordinary uses for which they are opened to the public.

A municipality is not an insurer of public safety on its streets. It does not assume to care for and protect the public using its streets under all conditions and emergencies. Dangers may suddenly appear in the streets, of which the city may have no notice. Exigencies may arise with which it is unable to cope, from which the public may suffer injury, but for which the municipality is not liable. It owes the public only the duty of reasonable diligence to keep its streets in such condition that the public, by exercising like diligence, may use them for all lawful purposes with reasonable security. A failure to perform this duty will render a municipality liable for the damage occasioned thereby."0

there is in Michigan the duty upon the city to keep its streets in a reasonably safe condition for travel. Finch v. Bangor (Mich.) 94 N. W. 738.

83 Sweeney v. Newport, 65 N. H. 86, 18 Atl. 86.

84 Wild v. Paterson, 47 N. J. Law, 406, 1 Atl. 490.

85 Taylor v. Peckham, 8 R. I. 349, 91 Am. Dec. 235, 5 Am. Rep. 578.

86 Young v. Charleston, 20 S. C. 116, 47 Am. Rep. 827.

87 Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762.

88 Cairncross v. Pewaukee, 78 Wis. 66, 47 N. W. 13, 10 L. R. A. 473.

89 City of Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 . Ed. 200, and cases cited in notes 47-76, inclusive, supra. 90 City of Denver v. Baldasari, 15 Colo. App. 157, 61 Pac. 190;

Defenses.

For an injury occurring to any person from the apparent neglect of the municipality to keep its streets in repair, two defenses are open, which are generally recognized as sufficient (1) That the city had no notice, actual or implied, of the existing defect. The duty to repair is one of reasonable diligence. Liability cannot be incurred in such case before duty begins; and duty does not precede notice. But actual notice is not required. Having the care of the streets, the municipality

91

Weightman v. Washington, 1 Black (U. S.) 39, 17 L. Ed. 52; City of Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342; Peake v. Superior, 106 Wis. 403, 82 N. W. 306; City of Denver v. Moewes, 15 Colo. App. 28, 60 Pac. 986; Same v. Dunsmore, 7 Colo. 329, 3 Pac. 705; City of Boulder v. Niles, 9 Colo. 418, 12 Pac. 632; City of Denver v. Aaron, 6 Colo. App. 234, 40 Pac. 587; Turner v. Newburgh, 109 N. Y. 301, 16 N. E. 344, 4 Am. St. Rep. 453.

While a municipality may authorize erections for public utilities, such as hydrants, in its streets, it still owes to the public the duty to keep its streets in a reasonably safe condition for travelers by day and night; but it is not an insurer of the safety of those using its streets. Burnes v. St. Joseph, 91 Mo. App. 489.

It is the duty of the city to keep its streets in reasonably safe condition for all those who rightfully use them, or have occasion to pass over them for the purpose of business, convenience, or pleasure. Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397, 50 L. R. A. 783.

In the absence of a positive requirement of law that a city keep its streets in a safe or reasonably safe condition, it is bound only to exercise ordinary care to keep them in a reasonably safe condition. City of Dallas v. Moore (Tex. Civ. App.) 74 S. W. 95; Finch v. Bangor (Mich.) 94 N. W. 738; Aucoin v. New Orleans, 105 La. 271, 29 South. 502. And a city cannot claim that its streets are so far public as to free it from responsibility. Twist v. Rochester, 165 N. Y. 619, 59 N. E. 1131.

91 A city is not liable for injuries caused by defective streets in absence of actual notice of such defects, or unless they have existed so long that notice should be imputed to it. Bell v. Henderson, 24 Ky. Law Rep. 2434, 74 S. W. 206; Downs v. Commissioners, 2 Pennewill (Del.) 132, 45 Atl. 717. See Jones v. Clinton, 100 Iowa, 333, 69 N. W. 418; Snyder v. Albion, 113 Mich. 275, 71 N. W. 475; Mayor, etc., of City of Montezuma v. Wilson, 82 Ga. 206, 9 S. E. 17, 14

must use reasonable diligence to know their condition, such as an ordinary man uses in the care of his own property. Notice may, therefore, be implied from the obvious existence of the defect for a sufficient period. What is commonly known by the people in any portion of the city is imputed to the municipality. (2) The lack of any corporate fund and of any power to obtain one applicable to repairs has also been recognized as a good defense. Such inability in a municipal corporation is rare and exceptional. Want of funds alone is no defense; but lack of power to raise a fund applicable to such purpose was recognized as a just defense to the Men of

Am. St. Rep. 150; Town of Franklin v. House, 104 Tenn. 1, 55 S. W. 153; Ransom v. Belvidere, 87 Ill. App. 167; City of Murphysboro v. O'Riley, 36 Ill. App. 157; Same v. Baker, 34 Ill. App. 657.

But a city can only be charged with actual notice of a defect by proof that such notice was given to an officer having authority to act, or whose duty it was to report the matter to some one with authority. City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742.

92 Milledge v. Kansas City, 100 Mo. App. 490, 74 S. W. 892; Smith v. Sioux City, 119 Iowa, 50, 93 N. W. 81; City of Louisville v. Brewer's Adm'r, 24 Ky. Law Rep. 1671, 72 S. W. 9; Barr v. Kansas City, 105 Mo. 550, 16 S. W. 483; Shipley v. Bolivar, 42 Mo. App. 401; McAllister v. Bridgeport, 72 Conn. 733, 46 Atl. 552; McDonald v. Ashland, 78 Wis. 251, 47 N. W. 434; Tice v. Bay City, 84 Mich. 461, 47 N. W. 1062; Bradford v. Anniston, 92 Ala. 349, 8 South, 683, 25 Am. St. Rep. 60; Carstesen v. Stratford, 67 Conn. 428, 35 Atl. 276; Piper v. Spokane, 22 Wash. 147, 60 Pac. 138; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 South. 424; Jones v. Greensboro, 124 N. C. 310, 32 S. E. 675; Urtel v. Flint, 122 Mich. 65, 80 N. W. 991; City of Streator v. Chrisman, 182 Ill. 215, 54 N. E. 997; L'Herault v. Minneapolis, 69 Minn. 261, 72 N. W. 73; Breil v. Buffalo, 144 N. Y. 163, 38 N. E. 977; City of Palestine v. Hassell, 15 Tex. Civ. App. 519, 40 S. W. 147; Poole v. Jackson, 93 Tenn. 62, 23 S. W. 57; Rosevere v. Osceola Mills, 169 Pa. 555, 32 Atl. 548.

Where there is abundant time by reason of reasonably frequent examination to discover and remedy a defective street, and a person is injured in consequence of such defect, the municipality will not be relieved from liability for the consequences of its negligence. City of Chicago v. McCabe, 93 Ill. App. 288. See Corey v. Ann Arbor, 124 Mich. 134, 82 N. W. 804; Buckley v. Kansas City, 156 Mo. 16, 56 S. W. 319.

93

Devon, and has been ever since sustained in English and American courts. It is the chief ground of nonliability of quasi corporations, and should have equal force and recognition in favor of municipalities not empowered to perform the duty of repair. But there are cases which do not recognize the sufficiency of this defense, and declare it the duty of the corporation to close a dangerous street which it cannot repair.95 And the courts which recognize inability as a valid defense require the municipality to show that it has exhausted the means at its command to raise funds for the purpose, and given signals of the danger.""

Reasonable Care, What is.

What is reasonable care is a question of fact depending upon the circumstances of each particular case. The degree of repair of a street is a matter of municipal discretion. The standard of repair may well be different in various localities. What is a defect in a fine avenue or great thoroughfare may not be such in an obscure street or alley; and it has even been held that what might constitute actionable negligence on the part of a city as to one person may not be actionable as to another, which is equivalent to saying that what would be contributory negligence defeating the action of one person

97

93 Russell v. Men of Devon, 2 Durn. & E. 667.

94 Ante, § 9, note 35.

95 Elliott, Roads & Sts., pp. 445, 446, 452; Monk v. New Utrecht, 104 N. Y. 552, 11 N. E. 268; Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243.

96 Mayor, etc., of City of Birmingham v. Lewis, supra; Lord v. Mobile (1897) 113 Ala. 360, 21 South. 366; Whitfield v. Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; Carney v. Marseilles, 136 Ill. 401, 26 N. E. 491, 29 Am. St. Rep. 328; Moon v. Ionia, 81 Mich. 635, 46 N. W. 25; City of Erie v. Schwingle, 22 Pa. 384, 60 Am. Dec. 87; Albrittin v. Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Delger v. St. Paul (C. C.) 14 Fed. 567. See Collett v. New York, 51 App. Div. 394, 64 N. Y. Supp. 693, as to faulty construction and warning.

97 Municipalities are not bound to the same degree of care on an alley as on its streets. Musick v. Latrobe, 184 Pa. 375, 39 Atl. 226;