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City of Jacksonville v. Drew-Opinion of Court.

corporation was therefore liable. This case was carried to the Court of Errors of the State of New York, where the judgment was affirmed, (2 Denio, 433,) the court holding that “a municipal corporation is responsible for the negligence or unskillfulness of its agents and servants when employed in the construction of a work for the benefit of the city or town subject to the government of such corporation." The counsel for the Plaintiff in Error here cites Wright vs. Holbrook, 52 N. H., 120, as sustaining his position that this action could not be maintained against the City of Jacksonville. In that case the action was brought by Wright against Holbrook, one of a committee appointed by the town of Keene to make improvements about a body of water called Goose Pond with a view of supplying the citizens of Keene with water. It became necessary to clear a piece of land on the margin of the pond which had been bought by the town for that purpose, and the committee had let to one Nourse the job of so clearing it. Nourse set fire to the brush and log heaps on the land, having prepared it for burning, and it escaped on to the land of the plaintiff. The action was not against the town of Keene, but was brought against an individual-one of a committee appointed by the town.

The court in its opinion, speaking of the case of Bailey vs. The Mayor, &c., 2 Denio, supra, says: "By that authority the town of Keene would be made liable for the acts of the committee, and also of Nourse and of everybody else who might have anything to do with the clearing or preparing of the lot, or constructing the works, or building dams, or doing anything upon the land which the town owned. But that would be carrying the doctrine too far for this case, for though the city might be liable on that ground. this defendant could not be, as he did not own the land, nor was the work being done for his benefit, but for

City of Jacksonville v. Drew-Opinion of Court.

In this case

the benefit of the town of Keene. * * it does not appear that the defendant, or Nourse, or the town of Keene, were acting under any public authority, so as to bring the case within the principle stated for works done under public authority, such as railroads and canals, where public policy holds the corporation responsible, and will not permit it to escape by delegating their powers to another." In the Mayor, &c., of Baltimore vs. O'Donnell, 53 Maryland, 110, the court held that the corporation was liable for injuries received by O'Donnell by reason of a defect in the street, although one Manning had contracted to repair it, and had employed a sub-contractor to do the work. Eyler vs. Co. Com. of Alleghany Co., 49 Md., 257.

The case of Storrs vs. The City of Utica, 17 N. Y., 100, lays down the law as we think in accordance with sound principle. There was a sewer to be built in one of the streets of the city. The contract for building it was let to one Shippey. An excavation was made which was left open in the night time, the plaintiff drove his wagon into it and was injured. The defendant insisted that the contractor was liable and not the city. The plaintiff recovered and the case was taken to the Supreme Court, and was there affirmed, and was further appealed to the Court of Appeals and was again affirmed. Judge Comstock in delivering the opinion of the court says: "When a case can be found of respectable authority, holding that a city corporation, having exclusive control of the streets, owes to the public no duty in respect to them, and is not liable for accidents occasioned by gross neglect, then some progress will have been made in the argument for exonerating the defendant from liability for the injuries now in question." And again. he says: "The principles suggested become plain propositions in the case of a municipal corporation which owes to the public the duty of keeping its streets in safe condition.

City of Jacksonville v. Drew-Opinion of Court.

for travel. That the duty exists is not denied. And the doctrine that the persons receiving special injury from its non-observance can maintain an action therefor, was examined by this court and asserted in the recent case of Hitchcock vs. the Village of Plattsburg, 16 N. Y., 161. What then is the obligation of a city corporation when it undertakes to construct a sewer in a public street? Can it in that undertaking and in any mode of providing for the execution of the work throw off the duty in question, and the responsibilities through which that duty is to be enforced? Although the work may be let out by contract the corporation still remains charged with the care and control of the street in which the improvement is carried on. The performance of the work necessarily renders the street unsafe for night travel. This is a result which does not at all depend on the care or negligence of the laborers employed by the contractor. The danger arises from the very nature of the improvement, and if it can be averted only by special precautions, such as placing guards or lighting the street, the corporation which has authorized the work is plainly bound to take those precautions. The contractor may, very probably, be bound by his agreement, not only to construct the sewer but also to do such other acts as are necessary to protect travel. But a municipal corporation cannot, I think, in this way either avoid indictment in behalf of the public, or its liability to individuals who are injured."

See also City of Chicago vs. Robbins, 2 Black, U. S.. 418; Robbins vs. City of Chicago, 4 Wallace, 657.

The City of St. Louis gave its assent to the construction of a railroad along and under one of its streets, but reserved to itself the right, if it become necessary, to remove any sewer under such street. It became necessary, and the sewer was removed and reconstructed; owing to the negligence of

City of Jacksonville v. Drew-Opinion of Court.

the contractor in rebuilding the sewer the foundation of a house gave way and the house was damaged in an action against the city to recover the damages, the Supreme Court of Missourt held that the city was liable; and the fact that its officers failed to exercise any supervision or control over the work was no defence. It was their duty to have done Fink vs. City of St. Louis, 71 Mo., 52.

SO.

The courts of Indiana hold that a municipal corporation cannot by any contract it might make with a contractor avoid its liability to third persons for injury or death resulting from a breach of its duty in the care and control of its streets; that it owes a duty to the public to keep its streets, alleys and highways in a safe condition for use in the usual manner for travelers, nor can it escape responsibility for injuries resulting from its neglect of this duty, upon the plea that it had entered into a contract with another person for the performance of the work which rendered such use of the street, alley or highway dangerous to the traveling public. City of Logansport vs. Dick, 70 Ind., 65; the Town of Centreville vs. Woods, 57 Ind., 192.

We think the true doctrine is that a municipal corporation is liable in damages to parties receiving special injuries by reason of its non-observance of duty in keeping its streets, alleys, &c., in good repair, although the work of such repairs is let out by contract to another person. Dillon's Mun. Corp., 3 Ed., §1027, and authorities cited in

note.

2

This bridge would seem to be a part of the street, and consequently was under the control of the municipal authorities. Those authorities are liable for defects therein. on the same principle and to the same extent as for defective streets, and are within the same rules in regard to liability for injuries received as are the streets. 2 Dill. Mun. Corp., 3 Ed., $726.

Smith v. Bagwell-Syllabus.

It has been settled in this State that an action of trespass on the case will lie against a municipal corporation for a special damage occasioned by its nonfeasance or breach of duty in failing to keep its streets in repair. City of Tallahassee vs. Fortune, 3 Fla., 19.

The court below properly sustained the demurrer to the plea, and the judgment is affirmed.

TONY SMITH, APPELLANT, VS. BENJAMIN BAGWELL, Ar

PELLEE.

1. It will not do to eliminate from the charge of the court to a jury a sentence connected with a paragraph upon the same question and except to that, particular sentence; the whole paragraph must be taken together and stand or fall by itself.

2. The court charged the jury that "words from one person to another will not justify an assault and battery:" Held sufficient, that it was not incumbent upon the court to use the word "merely" or "only" after "words" in the charge to make its language intelligible to the jury; that the use of either of these words would not have strengthened or modified the charge, or given any new or other light to the jury.

3. Compensatory damages are defined as such as arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses and bodily pain and suffering. Exemplary, vindictive or punitory damages are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but also a punishment to the offender and an example to the community.

4. An award of punitive or exemplary damages in an action for a wrong, also punishable as a criminal offence, is not in violation of that portion of the eighth provision of the Declaration of Rights, which provides that "no person shall be subject to be twice put in jeopardy for the same offense."

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