Anne Arundel County v. Carr.

Thomas, J., delivered the opinion of the Court. The appellee brought suit against the County Commissioners of Anne Arundel County to recover for injuries claimed to have been sustained' by her while driving over a bridge on one of the public roads of said county, by reason of the negligence of the defendant in failing to keep the bridge in proper repair. The Court below overruled the demurrer to the amended declaration, and the trial of the case resulted in a verdict and judgment in favor of the plaintiff for $200 from which judgment the defendant appealed. The. declaration, which contains two counts, states, in the first count, that one of the public roads of Anne Arundel County, “to wit: A road leading from the Reservoir to Lusby’s School House, near Chesterfield, in the Second District of said county, was negligently and carelessly suffered by said defendants to be out of repair and unsafe for travel, and by reason of negligence of said County Commissioners the plaintiff on or about the 10th day of June, in the year nineteen hundred and eight, while traveling over said road, and that while the plaintiff was exercising dire, proper care and caution, was greatly injured by reason of the horse she was driving breaking through a bridge on said road and she being thrown from the vehicle in which she was driving, from which injury the said plaintiff suffered great bodily pain.” And, in the second count, “That one of the bridges on the road leading from the Reservoir to Lusby’s School House, near Chesterfield, in the Second District of Anne Arundel County, which said bridge was then and there a part of said public.road, was negligently and carelessly suffered by said defendants to be out of repair and in an unsafe condition for travel and by reason of the negligence and carelessness of said County Commissioners, allowing said bridge to be out of repair and in an unsafe condition for travel, the ¹⁴⁵ said plaintiff on or about the 10th day of June, in the year 1908, whilst traveling over said road and bridge and' whilst using’ and exercising due care and caution was thrown from the vehicle in which she was riding and was greatly injured, by reason of the horse breaking through said bridge, from which injury the said plaintiff suffered and continues to suffer great bodily pain,” etc. The ground on which the defendant demurred to this declaration is that under the Act of 1908, Chapter 654, a local law for Anne Arundel County, the defendant is not liable for injuries caused by the condition of the public roads of the county, and counsel for the appellant relies entirely upon the decision of this Court in the case of Baltimore County v. Wilson, 97 Md. 207 .

In that case the Court was dealing with the Act of 1900, Chapter 685, and after setting out the several provisions of the Act said: “It is apparent from this synopsis of the Act of 1900, that it not only introduces into the management of the public roads of Baltimore County, many details of administration not found in the general law, but it deprives the County Commissioners of almost the entire charge and control of the roads and imposes that duty upon a new set of officials, for whose appointment it makes provision. It creates a Board' of Road Commissioners for each district, and requires them to Take charge of all the roads and bridges in their respective districts’ and keep them free from hindrances and obstructions, to adopt a system for repairing and improving them, and' to cause the repairs and improvements to be made and to purchase the materials requisite for that purpose. The Road Commissioners receive a fixed salary and are not made subject to the control of the County Commissioners in connection with the repair or improvement of the roads or the purchase of materials. On the contrary, the Act directs them to report the condition of the roads and improvements made thereon to the Road’s Engineer, an independent official appointed by the Governor, and to make monthly statements of their expenditure for labor and material to the same official, to be by him approved, if ¹⁴⁶ correct, and handed to the County Commissioners, who are then required to order their payment after they have been properly audited.

The Road Engineer, and not the County Commissioners, is made the adviser of the Road Commissioners in the exercise of the charge conferred upon them by the Act over all the county road's and bridges. Rot only are the persons directly charged with the care of the roads thus made practically independent of the County Commissioners, but the power of the latter to levy taxes for the use of the roads is now so limited and restricted as in effect to deprive them of their former discretion as to the application of the funds raised by those taxes.” By the first section of the Act of 1908, the County Commissioners of Anne Arundel County “are authorized and empowered' to control and regulate the public roads and bridges” of the county subject to the provisions of the Act. The second section authorizes them to levy taxes for the use of the public roads, etc. The third and fourth sections provide for the appointment, by them, of a road engineer, and for his removal from office for incompetency, neglect of duty, etc., and the fifth section provides that' he shall have “charge, control and supervision of the working, repairing and reconstructing of the public roads and bridges,” and “charge and control of all teams, carts, wagons, machinery, implements and accessories which may be purchased or provided by the County Commissioners for the purposes of the Act,” and that he “shall employ such labor, teams and implements as may be by him and by the County Commissioners deemed necessary in connection with the work on public roads and bridges to be paid for by the County Commissioners;” that “He shall not work out or expend upon the roads and bridges of any district of the county a greater amount in any one fiscal year than the amount levied in such district by the County Commissioners as a district road tax, nor shall he expend in any fiscal year upon county roads and bridges a greater amount than is levied and appropriated by the County Commissioners therefor without first obtaining the written permission of ¹⁴⁷ said commissioners so to do;” that “He shall appear before the County Commissioners at their first meeting in each and every month and make a full and exact statement to them of all work done or contemplated by him and of all money expended ;” that “He shall not purchase or order any materials of any kind whatever without first making requisition therefor upon the County Commissioners and securing their written approval of such requisition, and the County Commissioners may either purchase the materials themselves or direct and authorize the County Road Engineer to do so;” that “He shall make annually in writing a detailed report to the County Commissioners of all work done on the public roads and bridges for the year, together with the names of all persons employed by him or under his direction in performing such work, and the amount certified to be due them,” etc. From the above recital of the provisions of the Act it is apparent that it does not resemble in any important particular the Act of 1900, relating to Baltimore County, and does not possess any of the essential features upon which this Court based its decision in Baltimore County v. Wilson . The Act of 1908 not only expressly provides that the County Commissioners shall have the power to “control and regulate the public roads and bridges” of the county, but authorizes them to levy the necessary taxes and to provide all teams, implements and materials, etc., for the use of the roads and bridges, the building and repairing of which is to be done under the supervision of the engineer, who is given charge of the teams and machinery furnished by the County Commissioners, but who is forbidden to purchase or order any materials of any Tcind without their approval, to whom he is required to make a report every month of the work done or contemplated, and the evident intention of the Legislature was not to relieve the County Commissioners of all liability for the condition of the public roads and bridges, hut to secure in their construction, repair and maintenance the benefit of skilled knowledge and experience.

In the case of County Commr’s v. Duvall, 54 Md. 350 , ¹⁴⁸ Judge Brent, speaking for the Court, said: “The County Commissioners are specially charged hy law with the duty of keeping these in good repair and safe for the travel of the public. Tyson’s Case, 28 Md. 510 ; Walter’s Case, 35 Md. 394, and cases above cited. If they fail to do so, and injury results, they are liable in an action at law, not by virtue of any liability at common law, but because they are made so by statute. They are. not permitted to excuse themselves by the fact that the Road Supervisor is also required by law to keep the public road in repair, and may be made liable in a penalty or in damages for a failure to do so.

Their obligation is a paramount and pre-existing one, and cannot be discharged by the failure of another to do that which they, the Commissioners, are required by law to do.” This statement of the law was quoted with approval in the recent case of Adams v. Somerset County, 106 Md. 197 .