County Commissioners v. Duvall

Brent, J., delivered the opinion of the Court. On the 26th of August, 1878, the appellee, in passing along one of the public roads in Anne Arundel County, at a point where it was being repaired under the direction of the Road Supervisor, was struck and injured by a tree rolling over from a bank, outside the road and elevated about twelve feet above the level of the road-bed. The tree was cut down by two of the hands engaged in making the repairs, for the purpose of being used to fill up ³⁵⁵ a wash, in the road. A high wind was prevailing at the time, and, as the tree was felled, it was whirled over for several yards in a direction after the appellee, who had passed by the point where it stood, and the “butt end,” striking upon his rockaway and crushing it, inflicted upon him considerable personal injury.

The proof is quite sufficient to establish a want of proper care on the part of those engaged in the work. The accident seems to have resulted from their negligence, and not in any way to have been attributable to the fault, or contributory negligence of the appellee. The third and tenth prayers of the appellants, which were rejected by the Circuit Court, raise the question of the liability of the County Commissioners of Anne Arundel County, upon the assumption that the act complained of was negligent, and upon that question will depend the reversal or affirmance of the judgment which was obtained by the appellee. The cases of Duckett, 20 Md., 468 , Gibson, 36 Md., 229 , and Baker, 44 Md., 1 , are relied upon, on the part of the appellee, as conclusively settling this case.

In all those cases the injuries, for which the County Commissioners were held liable, resulted directly from the bad condition of the public roads or bridges. The County Commissioners are specially charged by 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 Eoad 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 ³⁵⁶ to do that which they, the Commissioners, are required by law to do. This principle is recognized and applied in the case of the Mayor and City Council of Baltimore vs. O’Donnel, 53 Md., 110 . And it is the principle lying at the foundation of the cases relied upon by the appellee.

Had the injury here resulted directly from the bad and neglected condition of the public road, there would be no doubt of the appellee’s right to maintain his action. But quite a different question arises. The injury here complained of, is not the direct result of a failure to keep the road in proper repair, but is occasioned by a collateral act done by those engaged in repairing it. The responsibility of the Commissioners, if it exists at all, must depend upon the doci rine of respondeat superior.

This latter doctrine was very fully examined in a late case before this Court. In Deford’s Case, 30 Md., 179 , the leading authorities are reviewed, and this Court, speaking through Judge Alvey, says on page 203, “And taking the latter decisions as enunciating the proper distinctions upon the subject, it results from them that the rule respondeat superior does not apply where the party employed to do the work, in the course of which the injury occurs, is a contractor, pursuing an independent employment, and by the terms of the contract is free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done. In such case, the workmen employed by the contractor are his servants, and he is liable for any unskilfulness or negligence in the course of their employment, and not the party engaging the contractor to do the work.” The work which was in progress upon the public road, at the time of the injury to the appellee, was under the direction of the Road Supervisor. His office was