#### BARBOUR COUNTY *vs.*BRUNSON.

[action against county for negligence.]

1. *Statutory liability of county for damages caused by fall of public bridge.*— Under the provisions of the Code, ($ 1203,) an action *lies*against a county, to recover damages sustained from the fall of a bridge after the expiration of the period covered by the builder’s guaranty, although no toll was charged at the bridge.

Appeal from the Circuit Court of Barbour.

The record does not show who was the presiding judge.

The complaint in this case was as follows:

*363“ Marion A. Brunson *vs.*Barbour County. him in the loss of his property occasioned by the falling in of a bridge, which had been constructed by contract with the court of county commissioners of said county, over a stream known as ‘Hodge’s mill creek,’ on the public highway in said county from Eufaula to Midway; said court of county commissioners having taken a guaranty-by bond from the builders of said bridge that it should continue safe for the passage of travelers and other persons for the period of-years, which said period had elapsed; and although it had elapsed, said bridge was allowed to staud, in a neglected and unsafe condition, until the-- day of August, 1859, when, as plaintiff ’s wagon and team were passing over it, said bridge fell in, and killed a negro man and a mule, the property of plaintiff and injured his wagon and harness, damaging him in the sum of $2,000; for which damages plaintiff applied, in the terms of the statute, to the court of county commissioners for payment; but being by said court refused, he brings this action, and demands of said, county his damages aforesaid, together with interest thereon.

“Also, the like sum of $2,000, for damages sustained in the loss of property destroyed and injured by the falling of a public bridge, kept up by said county over a stream on a public highway in said county, to-wit, in August, 1859; the said county being bound to keep said bridge in a safe condition for the passage of the public, and by its failure to do so is responsible to plaintiff for the damages which he has sustained, by reason of said neglect.

“Also, the like sum of $2,000, as damages which he has sustained by reason of the negligence of the court of county commissioners of said county, for that heretofore, to-wit,” &c., “ the said court of county commissioners, by virtue of the jurisdiction given to it, did contract with certain parties, and authorize them to build a bridge across Hodge’s mill creek in said county, on the public highway leading from Eufaula to Midway, requiring said *364contractor’s to give bond to guaranty the safety of said bridge for the period of-- years; and the said period having elapsed, it became the duty of the said court to keep the said bridge in a safe condition for the passage of the public; but, not regarding their duty, the said court neglected to keep said bridge in good repair, but permitted it to become unsafe and dangerous, so that plaintiff, on the ~ — ■ day of August, 1859, passing over and upon said bridge, as he had a right to do, and said bridge (a part of said highway) having become rotten and. unsafe by reason of said neglect, while plaintiff’s wagon and team were passing over it, fell through, and was broken down; whereby a negro man and a mule, the property of plaintiff, were killed, and the wagon and harness were broken, damaging the plaintiff tq the amount of $2,000, as aforesaid; which said damages the said court of county commissioners, though requested so to do, have hitherto refused to pay; wherefore plaintiff sues,”'&c.

The case was submitted to the decision of the court below on the following agreed statement of facts: “It is admitted, that the facts set forth in the plaintiff’s complaint, not inconsistent with anything herein stated, .are true; that the negro and mule killed were worth $1,700, and the wagon and harness damaged to the extent of $10; and that if the plaintiff' is entitled to recover at all, he shall recover $1,710. It is admitted, also, that the bridge was built within the body of the county, and not on a-county line, by order of the court of county commissioners, by contract; that the bond given by the contractors had expired; that the bridge was free,, the defendant-having never charged or intended to charge any toll, and the plaintiff having never paid or offered to pay any toll; that the plaintiff’s demand was regularly presented to the court of county commissioners, within twelve months after the damage was sustained, and that payment of the same was refused by said court. Each party reserves the right of appeal to the supremo court.”

On these facts, the court rendered, judgment for the plaintiff; and its judgment is now assigned as error.

*365Jerk. Buford, for appellant.

Wm. H. Chambers, *contra.*

A. J. WALKER, C. J.

Section 1203 of the Code is in the following words : “ When abridge or causeway has been erected by contract with the county commissioners, with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time, any person injured in person or property, before the expiration of such period, by a defect in such bridge or causeway, may sue in their own name on the bond or other guaranty, and recover damages for' the injury; and if no guaranty is taken, or the period has expired, may sue and recover damages df the county.”

-It is perfectly clear, that this section, in its literal,import, gives a remedy for the complainant’s injury against the county. But it is contended, that the bridges and causeways referred to must be understood, to be toll bridges and causeways. In support of this position reference is made to the fact, that section 1203 is a part of an article, the caption of which indicates that “toll bridges,causeways, and ferries,” are the only subjects within its purview. It is a satisfactory reply to this argument; that section 1190, in the same article, is not susceptible of any application to toll bridges, causeways or ferries, and that the article is, therefore, clearly not restricted to the subjects mentioned in the caption.

But we think a comparison of section 1203 with other ■provisions of the Oocle, shows that its reference is not to toll bridges and causeways. Section 1203 very clearly relates to bridges and causeways built by contract. The 5th division of section 1159, and the latter clause of section 1189, show it to have been contemplated that the court of county commissioners should have bridges built by contract with the county funds. To the bridges and causeways thus built section 1203 has a very obvious application. Sectiou 1189, which is in the same ,article with section, 1203, authorizes the court of county commissioners to establish toll bridges, causeways and ferries, in rhe manner afterwards provided.. Section 1191 *366prescribes the manner in which the toll bridges, causeways, and ferries are to be . established. The manner prescribed is, to license persons to-establish ferries, causeways and bridges, to fix the rates of toll, and to require bond, with surety, of specified condition. Bridges and causeways, established by this section, are the toll bridges and causeways which the county commissioners are authorized to establish. They are clearly not the bridges and causeways referred to in section 1208, because they are not erected by contract with the county commissioners, as are those mentioned in 1203, and because they can not be erected under any other guaranty than that of the prescribed bond; while those mentioned in, section 1203 may be erected under a guaranty by bond or otherwise.. But there is still another consideration, which tends very strongly to show that the toll bridges and causeways mentioned in section 1191 are not the bridges and causeways mentioned in section 1203. Section 1197 prescribes the remedy on the bond given under section 1191; and if section 1203 refers to the same bridges and causeways, a remedy upon the same bond is prescribed the second-time, and the legislature is convicted of inserting a vain and useless provision in a code which was designed to be consistent and concise.

After a careful examination and. study of all the statutes bearing upon tbe subject, we can find no reason for giving to section 1203 a construction variant from tbe natural import of its language; and we are constrained to- hold, that the Code has, in that section, prescribed the remedy adopted in this cáse for an injury sustained under the circumstances set forth in the statement of facts agreed upon. ,

We do not controvert the argument of appellant’s counsel, that tbe authority which the court of county commissioners exercise over tbe subject of roads and bridges is governmental in its character, and that the-county would not, upon common-law principles, be liable for any injury which might, result from the failure to-exercise that authority in a manner the most conducive to the safety of the public. But the legislature has-*367unquestionably the power to impose such liability; and we think they have done so, to the extent necessary to sustain the ruling of the court below. — Smoot v. Wetumpka, 24 Ala. 112; Gilmer v. City Council of Montgomery, 32 *ib.*116; Dargan v. Mayor, &c., 31 *ib.*469.

As it was unrieeessary, we have not considered the questiou, whether the ruling of the court below can be revised upon the record before us, there being no bill of exceptions.

Judgment affirmed.