Chesapeake & Ohio Canal Co. v. County Commissioners

Ritchie, J., delivered the opinion of the Court This case has its origin in that of Eyler against the present appellee, heretofore reviewed by this Court, and reported in 49 Md., 257 . The facts of that case entering into this are, that, Eyler brought his action against the said Commissioners to recover damages for injuries sustained by reason oí' the defective condition of a bridge across the Chesapeake and Ohio Canal, over which he was riding on horseback. The road on which this bridge is situated is a public county road in Allegany County, and was such before the canal was made. This road, the Coinpany, in constructing its canal, cut in two, and connected again by the erection of a bridge, which bridge having been burnt down during the late war, the Company replaced it with the one on which the accident to Eyler occurred.

The County Commissioners resisted that suit mainly on the ground that the Canal Company was by law hound to erect and keep in repair the said bridge, and that therefore the action should have been brought against it. This defence the learned Judges below sustained; hut on appeal to this Court their judgment was reversed, and Eyler was awarded a new trial. When the record was sent back the case was removed to Garrett County, and tried at the May Term, 1879, the trial resulting in a judgment for the sum of $2418.00 damages, and $379.58 costs, against the Commissioners. This judgment the Commissioners paid, and thereupon instituted suit against the appellant to recover back the ²¹⁶ amount of the damages and costs so paid, with the interest accrued thereon, and also all the costs and counsel fees incurred hy them in conducting the defence.

In this suit they were successful, the jury finding a verdict in their favor for ISSSNAl, a sum which according to their calculation, as shown hy a statement handed to the clerk by the foreman, was made up of the several items claimed as aforesaid. On this verdict judgment was entered, and from this judgment the present appeal was taken. The narr. after setting out the facts relating to the bridge, Eyler’s injuries, his suit and recovery thereon, proceeds with the averments that the obligation was upon the appellant to keep the said bridge in safe condition, that the appellant had notice of the said suit of Eyler and participated with the appellee in defending the same, and that it was bound, in law to re-imburse the appellee all its said payments and expenditures, but that although so bound, and notwithstanding demand therefor, had neglected and refused so to do. The grounds upon which the appellant seeks a reversal of the judgment below, are succinctly stated as follows: First, that the Canal Company, if bound to erect a bridge at the time it cut through the road, which was about the year 1846, has been relieved of that- duty by operation of our statutes since enacted, which declare that the County Commissioners “ shall have charge of and control over the county roads and bridges,” and “may build and repair bridges, and levy upon the property of the county therefor.” Secondly, that even conceding the Canal Company was under obligation to keep the bridge in safe condition, the Commissioners have no right of action over against the Company, because this Court in Eyler’s Case decides that the law imposed upon the Commissioners a primary and unqualified obligation, so far as the public is concerned, to maintain and keep the bridge in proper repair, and that by virtue of this responsibility, and from ²¹⁷ having neither compelled the Canal Company to make the bridge safe for travel or done so themselves, the appellee was in pari delicto with the Company, and as a joint wrong-doer could not recover or have contribution from the Company.

Thirdly, that no such notification was given the Company of Eyler’s suit, as would render the judgment in that case binding upon it; and lastly, that if erroneous in the foregoing propositions, and the appellant is affected at all by the litigation between Eyler and the Commissioners, it is not concluded by it to the extent of the present judgment, because as it alleges, a portion of this judgment is for costs and counsel fees incurred by the Commissioners exclusively in their own behalf at the first trial with Eyler, and on the appeal therefrom, to neither of which proceedings it claims was it actually or constructively a party, nor notified to participate in them. In expressing our views upon the points thus made by the appellant: its demurrers to appellee’s narr. and replication, and its exception to the Court’s ruling on the prayers are necessarily disposed of, and they need not therefore be considered in detail. We do not think it open to dispute, that the Canal Company was hound in law to connect again by suitable means, any public road severed by it in constructing its canal. This was expressly decided in the case of Leopard vs. The Ches. & Ohio C. Compang, 1 Gill, 229 .

The principles underlying that decision have been repeatedly recognized by this and other Courts. They have been frequently applied in the excavation of streets and thorough hires by railway companies, and other disturbances of highways. The cases of Dygert vs. Schenck, 23 Wendell, 446 , and of Trustees of Burton Township vs. Tuttle, 30 Ohio St., 68 , are especially analogous to the present one. They arose from injuries received by persons from the defective condition of bridges erected by the ²¹⁸ owners of the soil, where they'had cut through public roads in constructing raceways to their mills.

In the former case, Cowen, J., in delivering the opinion of the Court, thus defines the relations of the owner of the land and the public : “ The defendant certainly committed no trespass in digging the ditch. It was his own soil. The only right adverse to his, was one to have a common highway for the purposes of travel. All the public could require was that he should make and keep the road as good as it was before he dug the ditch.

That he accomplished by building a substantial bridge originally, which did not get out of repair for a number of years. The road however, in the end, proved to he less safe than it was when the bridge was first built, certainly less so than before the ditch was dug. In suffering this, the defendant came short of his obligation to the public.” In the Ohio Case, the Court, using almost the same language, says: u The owner committed no trespass in digging the ditch through his own soil, hut what the public can require is, that when he cuts the highway, he should make and keep the road as good and safe for the public, as it was before he dug the race. This can be accomplished by building and keeping a substantial bridge over the race at the crossing.” It may be here observed of the argument made by appellant’s counsel, that by the terms of its charter and necessary implication therefrom, the Canal Company was invested with the power to destroy public roads where necessary to cross them, without liability to restore the means of travel over them, that the same claim was urged by the Company’s counsel in Leopard’s Oase, in 1 Gill, hut was there distinctly negatived by the Court in these words: “ Such a proposition we think is not warranted by any act of legislation before us, and nothing hut a grant of such a power in terms the most full and unequivocal, would ²¹⁹ induce this Court to believe that the Legislatures referred to, designed to confer it.

Such terms are not to he found in the charter of the Canal Company, and we do not deem it necessary to use arguments or illustrations, to show the non-existence of such a power.” That the Canal Company itself has recognized its obligation to maintain a bridge where Eyler was injured, is shown by its erection of one at that place shortly after it severed the road, and when it was burnt down during the war, by erecting the present one. And in regard to this identical bridge, this Court in the case referred to in 49 Md., thus explicitly states the effect of previous decisions, and its own concurrence therewith : “ It is therefore certain that the duty of maintaining and keeping this bridge in repair, is devolved upon the Canal Company.” It is simply for the additional security and convenience of the public, that the County Commissioners are held primarily responsible for the safe condition of the bridge, and not in anywise to lessen the obligation of the Canal Company to keep the same in repair. And so far from meaning to imply, in declaring this duty of the Commissioners .towards the public to ho primary, that the Canal Company could not he held answerable over to the Commissioners, on page 276 of tli o opinion in 49 ilíü, we expressly say: “But while we thus maintain the liability of the Commissioners to the appellant in this action, the Canal Company is by no means discharged from its obligation to maintain and repair this bridge; nor are the Commissioners left without remedy against the Company. Upon the principles decided in many of the cases referred to, as also by the Supreme Court of the U. S., in City of Chicago vs. Robbins. 2 Black., 418, and 4 Wallace, 657, they may have their remedy over against the Company, for whatever damages may he recovered against them in this action.” ²²⁰ Nor do we perceive from the nature and facts of this case any ground for defeating the appellee’s suit, because of the principle of pari delicto.

It is well settled that as to the public or third persons, one of two parties may be held primarily responsible, without diminishing the obligations of the other, or impairing the right of action over against him. The facts from which the cases in 2 Black, and 4 Wallace, just referred to, arose, were, that one Robbins having wrongfully left uncovered, an exeavation in the sidewalk next his lot, a certain Woodbury, in passing along the street fell into it and was injured. For this injury he brought suit against the City of Chicago, and recovered a judgment, which the city was forced to pay.' The city thereupon brought suit against Robbins, to recover from him the sum it had so paid. The Court say, that although a municipal corporation, having the exclusive care and control of the streets, is obliged to see they are kept safe for the passage of persons and property, and is primarily liable to one who has been injured in consequence of default in this respect, the corporation has a clear remedy over against the party who has so used the street as to produce the injury.

The general rule of law relating to the defence of pari delicto is, that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity or contribution from the other party. But it is not every case even of particeps criminis, or of actual co-operation in the offence, in which a party is precluded from recovering of his co-delinquent. This is illustrated in the well-known case of Williams vs. Hedley, 8 East, 378, which was an action for money had and received, brought to recover the sum of £965, as having been unduly obtained by the defendant from the plaintiff, under an agreement to compromise a qui tarn action for penalties of usury, brought by the ²²¹ defendant against the plaintiff. There the plaintiff’s action was sustained, although the rule is recognized as applying when “ the act is in itself immoral or a violation of the general laws of public policy.” A later case in this country exactly in point, is that of Inhabitants of Lowell vs. Boston and Lowell R. R. Corpo ration, 23 Pickering, 24, a leading authority in Massachusetts, on the doctrine of pari delicto, in connection with actions like the present.

In that case, from the similarity of the grounds of defence to those in this, the Court passes upon most of the questions raised here. The declaration sets forth in substance, that the plaintiffs were bound to keep in repair a certain highway; that the defendants while having the right to use that highway, for the purpose of removing stone and rubbish from the deep-cut, made for the passage of their railroad, removed certain barriers which had been placed across the highway, to protect travellers from falling into the deep-cut, and neglected to replace the same ; that in consequence thereof, two persons named Currier and Smith, while driving along such highway, were precipitated in the deep-cut and greatly injured ; and that by reason thereof, those persons brought their actions, and recovered large sums of money against the plaintiffs,