ANNOTATION.

Duty and liability as to lighting bridge.
[Bridges, §§ 15, 29.]

There is considerable difference of opinion, or at least of results, due in part to differences in underlying statutes, upon the general question of responsibility for condition of bridges. See 4 R. C. L. 221. The question under annotation, however, presupposes the general responsibility of the defendant for the unsafe condition of the bridge, at least, if attributable to its fault, and is concerned with the question whether fault in that regard may be predicated of absence or improper condition of lights.

As will appear from the cases set out in this annotation, the duty of a municipality or private proprietor in regard to lighting bridges springs from the duty to keep highways in good, safe, and passable condition for ordinary travel, and failure to light the bridge is considered in connection with other facts in determining negligence, such duty being considered similar to the duty of a municipality to light its streets. Drawbridges.

In Chicago v. Powers (1866) 42 Ill. 169, 89 Am. Dec. 418, in holding a municipality liable in damages for the death of a person who was drowned, due to the negligence of the city in maintaining insufficient lights on a drawbridge, the court said: "But it is contended that it was not the duty of the city to provide lights for the bridge. It might, perhaps, be a sufficient answer to say that the city regarded it a duty, or they would not have undertaken its But the charter authorizes the city performance. to levy a tax for the purpose of defraying the expense of lighting the streets of the city. It seems to us to be obvious that a bridge over a stream crossing a street is a part of street. It is as much so as the cover placed over a drain or a sewer crossing a street. Persons travel over it as they do over other portions of a street, subject, it may be, to any de

the

lay that may be occasioned in opening and closing a draw. It is in, and must be a part of, the street. It is under the control of the city, and kept in repair and attended under the city authorities, and we have no doubt that it was as much their duty to light the bridge as any other portion of the street."

Likewise, in Chicago v. Thomas (1908) 141 Ill. App. 122, where a person was drowned by driving into an open drawbridge, the court, in upholding a finding of the jury that the city was negligent in not providing proper safeguards on an open drawbridge where the evidence was undisputed that an electric light located on the street at the end of the bridge was dim and flickering, said: "It is evident that such an opening in the public street over the river, with no one present to give warning and insufficient light to call attention to the absence of the bridge, was exceedingly dangerous. The city recognized the danger in the daytime and provided chain and watchman to guard against it. If it was regarded as the duty of the city to furnish such protection in the daylight, no reason appears why the duty should have been neglected after dark, when it is obvious from the evidence the danger was greatly increased."

And in Chicago v. Wright (1873) 69 Ill. 318, where the accident occurred on a dark and rainy night, and it appeared from the evidence that the place was insufficiently lighted, the finding of the jury holding the municipality guilty of negligence in not using proper precautions to protect the public against an open drawbridge was not disturbed.

So, in Chicago v. McDonald (1894) 57 Ill. App. 250, the court in upholding a recovery against a city for damages for the death of a person who drove his horse into an open drawbridge, upon the theory that the

bridge was insufficiently lighted, said: "It is quite true that, while municipal corporations have the power to light their streets, they are not bound to do so; and that, if they do undertake such task, it is then sufficient if they light them in such a manner that they are in a reasonably safe condition for travel in the ordinary modes."

And in Stephani v. Manitowoc (1895) 89 Wis. 467, 62 N. W. 176, which was an action to recover for the death of a person who fell into an open drawbridge operated by the city, it was held that if the drawbridge was not reasonably safe and sufficient

a drawbridge in the nighttime, without being lighted, then it was the duty of the city to light it, for the city had not completely done its duty to the public until it had made that drawbridge reasonably safe and sufficient for the passage of travel at all times, although possibly the question whether the absence of barriers and light was an insufficiency in the bridge, as a fact, was not so clear as to make the question of negligence one of law for a court.

In Manley v. St. Helens Canal & R. Co. (1858) 2 Hurlst. & N. 840, 157 Eng. Reprint, 346, Watson, B., in a concurring opinion, said that, if a bridge is so constructed as to be open at night, it ought to be lighted and watched.

As affecting the question of the necessity of notice to the city of a defect in its drawbridge, due to its not being lighted, the Wisconsin court said, in Stephani v. Manitowoc (Wis.) supra: "The rule which requires notice to the corporation of defects in its highway or bridge has no application in such a case as this. It is not like the case of an accident to the bridge, or a mere want of repair. The defect is the lack of completion of the bridge for the use for which it was intended, and is obvious. The city was under an absolute duty to make this drawbridge safe to public travel. It was bound to use reasonable diligence and care to that end. It was bound to see that the open draw was carefully guarded, so as to be reasonably safe. It was not absolved from

this duty by the employment of a competent bridge tender to operate. the draw of a bridge which it had left incomplete and unsafe."

In respect to the duty to provide drawbridges with signal lights to prevent collision with passing steamers, it was held in Marinette v. Goodrich Transit Co. (1913) 153 Wis. 92, 140 N. W. 1094, Ann. Cas. 1917B, 935, that where a city is suing for collision between a steamer and its bridge, the absence of such lights on the bridge as are required by the rules of a lighthouse board, made under the authority of act of Congress, throws the burden on the party in default to show that the absence of such lights not only did not, but could not, have caused the injury.

And in Smith v. Shakopee (1900) 44 C. C. A. 1, 103 Fed. 240, where the bridge where the accident occurred was not provided with such lights as the regulations of the lighthouse board required, it must be adjudged that the city was at fault, and did not exercise that reasonable degree of care and diligence in lighting the draw of the bridge which the law requires of the owner of a drawbridge across a navigable stream. Stationary highway bridges.

In the reported case (LOUISVILLE & N. R. Co. v. LOESCH, ante, 347) it is held that a bridge company which charges the public for the use of its structure, and invites its use during the nighttime, should during such time furnish adequate artificial lights to enable the public so to use its structure with reasonable safety, and especially should such duty be fulfilled under the modern conditions, when such structures in thickly populated communities are often swarming during the nighttime with motor car traffic.

So, in Loewer v. Sedalia (1883) 77 Mo. 431, in which the elements of negligence relied upon by the plaintiff for recovery against a municipality were the absence of guard rails on the bridge, and its failure to provide lights, in refusing an instruction that the want of a light at the bridge to enable foot passengers to see their

way there was not negligence on the part of the city, the court said: "Whether the absence of a warning light tends to establish negligence depends upon the character of the danger, as arising from the situation, condition, and use of the bridge at the time of the accident, and is properly a question of fact for the jury."

So, in Conowingo Bridge Co. v. Hedrick (1902) 95 Md. 669, 53 Atl. 430, where the keeper of a covered toll bridge let the rider of an unlighted bicycle on the bridge behind a pedestrian who was injured in a resulting collision, it was held that whether the defendant was guilty of a want of reasonable care-that is to say, of negligence-in failing to provide light, was a question for the jury to consider in connection with all the facts of the case.

In Com. v. Central Bridge Corp. (1853) 12 Cush. (Mass.) 242, in which a toll-bridge corporation was indicted for the neglect of a public duty in failing to keep the bridge lighted during the night, in which Chief Justice Shaw, in construing the provision in the charter of the corporation relative to the care required by the bridge corporation, said: "The court are of the opinion that, taking the entire act, the defendants were bound to build, maintain, and keep a bridge, being a section of a highway, and it was their duty to keep it in a safe and convenient state and condition to accomplish the purpose for which it was designed. Then, whether light in the nighttime was necessary to render it safe for all travelers was a question of fact, and, as such, was left to the jury. They were instructed that it was for them to determine, upon all the evidence before them, what was reasonably safe and convenient for persons passing over the bridge in the nighttime, whether the defendants did so light the bridge as to make it reasonably safe and convenient for passengers. this instruction was right." We think And in Boyd v. Kansas City (1922) 291 Mo. 622, 237 S. W. 1001, which was an action by a person injured by a collision with an iron girder in the

middle of a bridge, in holding that a
person injured while in the exercise
of ordinary care may recover dam-
ages for the negligence of the city in
not providing sufficient lights to en-
able the travelers to see its dangerous
construction, the court said: "If a
bridge in a highway is constructed
according to plans prepared by min-
isterial officers of the city, in the ex-
ercise of a discretion conferred upon
them by ordinance, in such manner
that the bridge, or some part of it, is
dangerous to travelers at night, with-
out having lights thereon, the city
fails in its bounden duty to keep the
highway reasonably safe for travel,
and is guilty of negligence, in opening
and maintaining such bridge
without such lights thereon."

And as relating to the question of the duty to maintain red warning lights upon defects in a bridge, see Jones v. Brookfield Twp. (1922) 221 Mich. 235, 190 N. W. 733, in which it was held that the failure of the mu

nicipality to mark at night, by red lights, a barrier across a bridge that had been washed out by a flood, constituted negligence on the municipality's part, and permitted a recovery for injury occasioned by such negligence.

Likewise, in Shannon v. Council Bluffs (1922) 194 Iowa, 1294, 190 N. W. 951, which was an action for damages for injuries resulting from a collision between an automobile and a truss on a bridge in a public street, the court was of the opinion that the city was not negligent where the evidence showed that there were two arc lights burning east and west of the bridge, one being about 40 feet from the bridge and the other about 300 feet, and one witness testified that after the accident he was at the place in question, and could see from the west end of the bridge to where the wrecked automobile was lying some 75 feet distant, the court said: "The laws of this state do not require cities and towns to light the streets. It is not negligence to fail to do so, unless the condition of the street is such that reasonable care on the part of the city would require that it be lighted.

The undisputed evidence shows that the bridge was sufficiently lighted at the time to have readily disclosed the existence and location of the truss to one driving on the street in a lawful manner and at a lawful rate of speed. A contrary finding by a jury would have been without support in the evidence."

Although not precisely within the scope of this annotation, it was held in Vance v. Shelby County (1925) 152 Tenn. 141, 273 S. W. 557, that, while a county was not liable to an automobilist who was injured by the removal of a bridge from the highway, without the erection of any barriers or other obstruction, or the maintenance of any lights or other warning, to notify persons who might use the road of its dangerous condition, the failure of officers and employees to erect such barriers or place such warning lights where the bridge had been removed amounted to misfeasance for which they would be liable.

As to liability for damages by collision of vehicles with piers placed in street to carry overhead structures, see the annotation in 46 A.L.R. 943.

In Houston & T. C. R. Co. v. Sgalinski (1898) 19 Tex. Civ. App. 107, 46 S. W. 117, it was held that a railroad company was under no duty to keep its bridge lighted for a licensee on its track; that the only duty that the railroad owed to the licensee was the duty to use ordinary care and caution in the operation of its engine and cars.

And in Pugh v. Catlettsburg (1926) 214 Ky. 312, 46 A.L.R. 939, 283 S. W. 89, it was held that no liability on the part of the city could be predicated

upon its duty to place lights on railroad piers placed in a street to support a railroad bridge, where under the circumstances such omission could not have caused the injury complained of, as where an automobile driver was blinded by the lights of an approaching car.

And where a steel truss dividing the carriage way of a bridge carrying a railroad over a street was so obscured by steam that a motorist could

not see it, though his lights were
burning, it was held that the fact that
the city has not placed lights on the
truss did not show negligence, as
lights on the side of the bridge
would not have disclosed the presence
of the truss, and the city could not
anticipate the peculiar action of the
steam. Gaines v. New York (1915)
215 N. Y. 533, L.R.A.1917C, 203, 109
N. E. 594, Ann. Cas. 1916A, 259.
G. R. B.

COUNTY OF MONTEREY et al.

V.

NELLIE PEARL RADER, by Guardian ad Litem, et al.

California Supreme Court (In Banc)

(— Cal.

August 13, 1926.

248 Pac. 912.)

Workmen's compensation, § 13 one summoned to assistance of sheriff as employee.

1. A bystander summoned by the sheriff to assist in making an arrest is within the operation of a Workmen's Compensation Act declaring an employee to be every person in service under any appointment.

[See annotation on this question beginning on page 365.]

Sheriff, § 1-power to summon aid.
2. A sheriff may, without organizing
a formal posse comitatus, ordinarily
summon to his assistance any person
when he deems it necessary to effect

an arrest.

[See 2 R. C. L. 491; 1 R. C. L. Supp. 555; 4 R. C. L. Supp. 114.]

Workmen's compensation, § 13

struction

con

effect of express inclu

sion of certain persons.

3. A Workmen's Compensation Act does not exclude from its operation one summoned by a sheriff to assist in an arrest, by an express inclusion within its benefits of all elected and appointed paid public officers, where the act generally operates in favor of any person in service under any appointment.

Evidence, § 35-judicial notice - appointment of deputy sheriffs.

4. The court takes judicial notice of the fact that many persons are appointed at their own request as deputy sheriffs, to serve their personal inter

ests.

Workmen's compensation, § 13-construction conflicting provisions

reconciliation.

5. The express inclusion in a Workmen's Compensation Act of "appointed paid public officers" does not vitiate or annul provisions relating specially to deputy clerks, deputy sheriffs, and deputy constables.

Workmen's compensation, § 79
amount of award.

6. The award for death of one sum-
moned by a sheriff to assist in an ar-
rest should be computed upon the av-
erage annual earnings of a deputy
sheriff in the county where the ap-
pointment was made.
Workmen's compensation, § 13 sta-
tus of one assisting sheriff in mak-
ing arrest.

7. One summoned by a sheriff to assist in an arrest will, for the purpose of determining the right to compensation under the Workmen's Compensation Act for his death while so engaged, be regarded as a regularly appointed deputy sheriff, and not as a member of a posse comitatus performing a duty which every citizen owes to the state.