#### THE CITY OF GALVESTON v. G. POSNAINSKY.

IN THE SUPREME COURT OF TEXAS,

AUSTIN TERM, 1884.

*Municipal Corporation*— Liability.—In this state, municipal corporations are not made liable for injuries resulting from neglect, by any express statute;, and if liable, they aré so, solely, on the ground that the proper application of the principles of the common law makes them so-liable.

*Same.*— No action lies against a subdivision of the state, created solely for a *242public purpose, by a general law applicable to all-such subdivisions, for an injurv received by a person through the neglect of the officers of such sub- division, even though it be given a *quasi*corporate existence, the bet'er to unable it to perform the public services imposed bylaw.

*Same.*— The rule that a private action cannot be maintained against a town, for a neglect of corporate duty, unless such action be given by statute, is limited to the neglect or omission of those duties which are imposed ou all towns, without their consent, and exclusively for public purposes.

*Same*— Special *Charter*— Contract *Implied.*— A city accepting a special charter from the state, conferring power to open, control ana keep in repair its streets, impliedly contracts to exercise such power with due care and diligence, and is liable for any injury resulting from the neglect or omission of its officials or agents.

Appeal from Galveston county.

It is urged that the court erred in giving the first and fourth instructions.

These instructions were as follows :

1. ‘‘The defendant has entire control of streets within the corporate limits, and has power to provide for and enforce the manner in which said streets are to be kept, and is liable to travellers on said streets for any damage received without the fault of the one injured, from the placing in the street such obstructions as render the travel upon said street hazardous to the persons or the property being conveyed or passing said streets.”

4. “ If the drain was a reasonably proper one in its manner of construction, and*the leaving it uncovered and unl'enced between the crossings of the streets and alleys was not reasonably liable to result in injury to persons passing and using ordinary care, to be expected from those who usually travel streets in the city, the defendant would not be liable, and you should return yóur verdict for the defendant.” It is also urged that the court erred in the charge generally, and so much of the charge as bears on the question raised, by the instructions above set out, are as follows :

2. “ The opening and repairing of streets is a matter of discretion in the city government 5 but when she undertakes to open or construct streets and travel-ways, she must so construct them as to render their use reasonably safe to such persons as are naturally expected to use said ways, using such care as such persons ordinarily exercise.”

3. “ It isthe duty of the defendant to provide for the health *o{**243the inhabitants of the city by the construction of all necessary and proper drains. It is a question for the jury to determine from the proof whether the drain on the seventeenth street covered at the crossings of the streets and alleys, but left uncovered in the intervening spaces and without any barrier to prevent travellers falling in the same, was such a construction as that the persons using said street could with ordinary care avoid réceiving injury therefrom.”

7. “If you find the drain was a dangerous obstruction in the street, and was not properly guarded, and that the plaintiff, using-due and orninary care in passing, slipped and fell into said drain, and that the injury she received resulted solely from said fall, and not in part from the presence of some accidental cause unknown to the defendant; you will find for the plaintiff, and assess the damage at such sum as in your judgment of the proof will compensate her for the pecuniary loss the plaintiff has sustained in the damage done to her person by said fall and injury.”

The second instruction asked by the defendant, and refused by the court, in effect, declared that the performance of certain acts by the city would be the exercise of due care. This charge was subject to objection, on this account, and the question of due care on the part of defendant was fairly presented to the jury, by the charges before referred to, in connection with the following charge which was given by the court:

5. “If the proof should satisfy you that the drain was one dangerous to persons passing and using ordinary care ; but should satisfy you also that the injury in question resulted from the want of ordinary care on behalf of the plaintiff, the plaintiff can not recover for the injury thus received through the plaintiff’s want of ordinary care. In considering the question, the use of care on the part of the plaintiff, you will have regard to the age of the plaintiff, and not exact the came degree of care on the part of a child of nine or ten years as would be exacted of and exercised by a person of mature years and discretion.”

The second instruction asked by the defendant, as well as the third, which was also refused, assumed that the city was liable, if the injury resulted from the want of due care by it, without negligence on the part of the injured person. As well stated by conusel for appellant; “the gist of the action is the negligence of a municipal corporation, in failing to keep its streets in repair, whereby *244damage resulted to 8 private person. And right at the threshold wear' conii onted w th the important question: Is a municipal corporation hable, civilly, for such negligence This question is thirty raised by the, assignments of error, based on the charges given; it may, however, be doubted, kicking to the charges, asked by the defendint and refused, whether this question was directly raised in the court below, during the trial. The city of Galveston is a municipal corporation, incorporated by an act of the legisloture of this this sta>e ; and in addition to the powers of taxation, nid other like p iwers usually conferred on such corporations, its charter provides that it shall have powers thus stated in its charter :

Title 12, Art. 4 — “Section 7. To have exclusive control and power over the streets, alleys and public grounds and highways of the city, and to abate, and remove encroachments or obstructions thereon, to open, alter, widen, extend, establish, regulate, grade, clean, or otherwise improve the same; to put drains and sewers therein, and to prevent the encumbering thereof in any manner, and to protect the same from any encroachment or injury, and to regulate and alter the grade of premises, and to require the filling up and raising of the same.

Sec. 8. To establish, erect, construct, regulate and keep in repair bridges, culverts and sewers, sidewalks and crossings, and to regulate the construction and use of the same, and to abate and punish any obstructions or encroachments thereon ; and the cost of construction of sidewalks shall be defrayed by the owner of the lot or part of lot or block, fronting on the sidewalk; and the cost of any sidewalk constructed by the city, shall be collected if necessary by the sale of the lot or part of lot or block on which it fronts, together with the cost of collection in such manner, as the city council may by ordinance provide. * * * (Special Laws 1871, page 355).

Section 14. To prevent the encumbering of the streets, alleys, sidewalks and public grounds with * * * **** boxes, lumber, timber, firewood, posts, awnings, signs, or any other substance or material whatever, or in any other manner whatever ; to compel all persons to keep all weeds, filth and any kind of rubbish from the sidewalks and gutters in front of the premises occupied by them. * * * (Special Laws 1875, page 857).

The near approach of the close of the term makes it necessary that we content ourselves, with a statement of what we understand *245to be the law, oil the question raised ; as settled by the great weight of authority, and upon principie', in regard ¡o the liability of a municipal corporation, created by a special law, granting sucli powers, as are given to the city of Galveston by its charter, and giving such means as are therein given to execute the powers, for damages to an individual, resulting from an injury received through the neglect of such a municipel corporation, to keep in repair its streets, other public ways, sewers and hke public works, over which it is given full control by its charter.

In this state such corporations are not made liable, for injuries resulting from neglect by any express statute; and if liable, they are so solely on the ground that the proper application of the principles of the common law makes them so liable. To determine what the common law rule upon this subject is, we will refer to the great body of the common law decisions, on this question, which for the reasons given we eannot to any considerable extent reviews, but will to some extent cite; feeling that a conclusion thus reached will more likely be correct, than the conclusion of a single court based upon such course of reasoning as it might pursue.

It has been often held, that no action lies against a subdivision of a state created solely for a public purpose, by a general law applicable to all such subdivision, for an injury received by a person through the neglect of the officers of such subdivision, even though, by the general law, such subdivision may be given a *quasi*corporate existence, the better to enable it to perform the public service imposed by the law.

The English cases, the cases in the New England states, and in some of the other states in which such *quasi*municipal corporations exist illustrate this rule.

These cases are but the practical application, and proper extension of the rule, that a state can not be made liable to an action for the neglect or misfeasance of its officers, through which a person sustains injury, unless by statute the action is given. In so far as a *quasi*corporation exercises powers exclusively public in their character, forced upon it without its consent, simply because the state can thus through such local agencies more easily and effectively discharge duties essentially its own, it is but proper that no action should be maintained against it for the negligence or even misfeas*246anee of its officers, unless the action be given by an expression of the same sovereign will, which arbitrarily imposed the duty.

The necessity for imposing even on such *quasi*corporation, a liability for the negligence and misfeasance of their officers, and for giving actions against them through which such liability may be enforced, has generally been felt, and hence statutes ordinarily, have been enacted fixing the liability and giving the action. The rule is very clearly presented in the case of Biglow v. Inhabitants of Randolph, 14 Gray, 543; in which the court said: “ It was said by Chief Justice Parsons, half a century since, hi Riddle v. Proprietors of Locks and Canals, 7 Mass., 187; and adjudged by a full court in Mower v. Inhabitants of Leicester, 9 Mass., 247, that a private action can not be maintained against a town, or orther *quasi*corporation, for a neglect of corporate duty,’unless such action be given by statute. And so it has since been hold by this and other courts. This rule of law, however, is of limited application. It is applied, in case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes ; and not to the neglect of those obligations which a town incurs n hen a special dnty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, as its request. In the latter cases, a town is subject to the same liability, for the neglect of those special duties, to which private corporate would be, if the same duties were imposed, or the same authority were conferred on them including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents. See the cases referred to in Eastman v. Town of Meridilh, 36 *N.*H. 295 ; Conrad v. Town of Ithica, 16 N. Y., 118.”

The case of Eastman v. Town of Meredith is ono of much interest upon the subject under consideration and may be consulted with much profit, as may the following casos and authorities : Rowe v. Portsmouth, 56 2ST. H., 291; Commissioners v. Duckett, 20 Md., 469; Commissioners v. Gibson, 30 Md., 329; Commissioners v. Baker, 44 Md., 1.

The tendency of the decisions is evidently to recognize the liability of even *quasi*corporations to suit *not*expressly given by statute, when injury results from the negligence of officials or agents exercising powers purely ministerial in reference to matters which can not be said to pertain to -duties purely public to matters which *247though in a restricted sense are public, yet, more directly affect the welfare and pecuniary interest of the inhabitants of the *quasi*corporation, upon whose will rests the determination whether the given act shall be performed, and how it shall be performed, and upon whom rests solely the expense of the work put in operation by themselves, through which, at least indirectly, they receive benefit'd) which the general public, if at all, but slightly participates.

Counties and like *quasi*corporations are created by the legislature by general laws, without reference to the wish of their inhabitants, and this, for essentially public purposes.

No so with towns and cities which are incorporated through special charters, which like most special laws, are enacted at the request of those who are to be most directly benefitted by then), and with a view to this end.

The one is created for a public purpose, as an agency of the state through which it can most conveniently and effectively discharge the duties which the state as an organized government assumes to every person, and by which it can best provide the welfare of all. The other, while to a given extent, created for a public purpose is so mainly, for the reason that the existence of large towns and cities makes a system or degree of police there necessary, which is not in the villages, uor with a rural populado»; but the main and essential purpose for which they are created, cis the advantage of the inhabitants of the corporation, and in so far as such corporations receive and exercise powers, other than such as would be exercised by the State in and through the county organizations, this is essentially true.

Counties are declared by the laws of this state to be corporations; and they are municipal corporations in the sense that they are agencies “to regulate and administer the internal concerns of its locality in matters peculiar to the place incoiporated and not common to the state or people at large,” but at the same time the state makes use of the corporation, and of its property such as jails aud courthouses, and of its officers, to exercise powers not strictly municipal, but in fact state powers, exercised for the state through the local officers within prescribed territorial limits. 1 Dillon, 93.

Counties are created by general laws, and while they are municipal corporations in a restricted sense, they are involuntarily so, and sustain to the state, a relationship which a town or city incorporated does not sustain. They are credited to carry out a policy common *248to the whole state, and not mainly *to*advance the interest of the particular locality, and to bring advantage or emolument to the inhabitants of the municipality, it would seem, that in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public; purposes pertaining to the administration of general laws made to enforce the general policy of the state, they should be deemed agencies of the state and not subject to be used for any act or omission occurring while in the exercise of such power, unless by statute, the action be given; that in reference to such matters they should stand as does sovereignty; whose agents they are, subject to be sued only when the state by statute declares they may be. How far, counties, as municipal corporations, if at all, maybe liable for injuries resulting from misfeasance or neglect, it is unnecessary in tliis case to inquire.

In so far, however, as they exercise powers, not of this character, voluntarily assumed; powers intended for the private advantage and benefit of the locality and its inhabitants there seems to be no sufficient reason why they should be relieved from that liability to suit, and measure of actual damage to which an individual of private corporation exercising the same powers for a purpose essentially private would be liable.

Persons or corporations that voluntarily assume and undertake the performance of a work, even though it be *quasi*public iri its character, ought to be held to impliedly contract that they will exercise due care in the performance, and for a neglect in this respect should be hable for the result in damage. We do not wish, however, to be understood to assert that there is a contract between the state and the municipal corporation accepting a charter, but simply to assert that when such a corporation accepts a charter giving definite powers, the law imposes the duty of faithfully exercising them, and gives action for misfeasance or neglect, in this respect, to any person who may be injured by such failure of duty.

After having considered the true nature and liability of, towns, counties, townshijis, boroughs, school districts, road districts, and other organizations, existing in some of the states, under general laws, for the performance of public duties, as a part of the machinery of the state government, Judge Cooley thus speaks of municipal corporatons accepting special charter from the state: “The reason which exempts those public bodies from liability to private ao • *249tions, based upon neglect to perform public obligations, does not apply to villages, boroughs and cities which accept special charters from the state. The grant of the corporate franchise, in those cases, is usually made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them ip a valuable privilege. This privilege is a consideration for the duties which the charter imposes. Larger powers of self government are given them are confided to towns or counties; larger privileges in the acquisition and control of corporate property; special authority is conferred to make use of the public highways for the special and peculiar convenience Of the citizens of the municipality in various modes not permissible elsewhere.

“The grant by the state to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the state merely, but for the benefit of every individual interested in its performance.

“In this respect these corporations are looked upon as occupying the same position as private corporations, which, have accepted a valuable franchise, on condition of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restrictions upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases.

“And a similar liability would exist in other cases where the same reasons would be applicable.” The Supreme Court of the United States, in a number of cases, has held that municipal corporations with powers no broader, means no greater, and duty not more clearly imposed, than we find in the charter of the city of Galveston, are responsible for injuries which result from neglect to keep streets and other like public works in repair. (Wrightman v. Washington, 1 Black., 39; Chicago City v. Robins, 2 Black., 410; Mayor v. Shif*250field, 4 Wallace, 189; Evanston v. Gunn, 97 U. S. 660; Barnes v. District of Columbia, 91 U. S. 521.)

In the case last cited the court uses the following language: “It is denied that a municipal corporation (as distinguished from a corporation organized for private gain,) is liable for the injury to an individual arising from negligence in the construction of a work authorized by it. Some cases hold that the adoption of a plan of such a. work is a judicial act, and if injury arises from the execution of that plan no liability exists. (Childs v. City of Boston, 4 Allen, 41; Thayer v. Boston, 19 Pick., 511.) Other cases hold that for its negligent execution of a plan good initself, or for mere negligence in the case of its streets or other works, a municipal corporation cannot be charged. (City of Detroit v. Blackely, 21 Mich., 84, is of the latter class, where it was held that the city was not liable for an in« jury arising from its neglect to keep its side walk in repair.

“The authorities establishing the contrary doctrine that a city is responsible for its mere negligence, are so numerous and so well considered that the lawmust be deemed to be well settledin accordanee with them. English authorities: — Mayor v. Henley, 2 cl. a, Ein., 331; Mersey Docks v. Gibbs; Same v. Penhallow, 1 H. Ld. Cas. N. S. 93; 1 H. & N. 439; Lan. Canal Co. v. Parnably, 11 Ad. & Ell., 223) Scott v. Mayor, 37 Eng. Lan. & Eq. 465. United States authorities: — Weightman v. Washington, 1 Bl., 39; Nebraska v. Campbell, 2 id. 590; Robbins v. Cnicago, 4 Wall, 658; Supervisors v. W. S. id. 435; Mayor v Sheffield, id. 194; New York — Davenport v. Ruckmau 37 N. Y.s 568; Requa v. Rochester, 45 N. Y., 129; Rochester W. L. Co. v. Rochester, 3 id. 463; Conrad v. Ithica, 16 id. 158; Barton v. Syracuse, 36 id. 54. Illinois: — Browning v. City of Springfield, 17 111., 143; Clayburg v. City of Chicago, 25, id, 535; City of Springfield v. Leclain, 49 id. 476.- Alabama: — Smost v. Mayor of Wetumpka, 24 Ala. N. S. 112. Connecticut: — Jones v. City of New Haven 34 Conn. 1. North Carolina: — Mars v. Wil mington, 9 Ind., 73. Maryland: — County Commissioners of Anne Arundel County v. Duckett, 20 Md. 468. Pennsylvania: — Pitts-burg City v. Grier, 22 Penn., 54; Erie City v. Schningle, id. 388. Wisconsin: — Cook v. City of Milwaukee, 24 Wis. 270; Ward v. Jefferson, id. 342. Virginia: — Sawyer v. Coree, 17 Gratt., 241: City of Richmond v. Lond, id, 375. Ohio :- — Western College v. Cleveland, *25112 Ohio, N. S. 377; McCombs v. Akron 15 id. 570; Rhodes v Cleave-land 10 id. 159.”

The following cases and authorities maintain the same proposition: Baily v. Mayor etc., 3 Hill, 538; Mayor etc. v. Furze, 3 Hill, 612; West v, Brockport, 16 N. Y. 171; Lloyd v. Mayor etc., 1 Selden, 374; Stors v. City of Utica, 1 N. Y. 104; Ring v. City of • Coho-so, 77 N. Y. 83; Noonan v. City of Albany, 79 N. Y. 470; McCarty v. City of Syracuse, 46 N. Y. 194. Illinois: — City of Lacón v. Page, 48 111., 499; City of Champaign v. Patterson, 50 id., 62; City of Bloomington v. Bay, 42 id., 503; City of Storting v. Thomas, 70 id., 275; White et al v. County of Bond, 58 id., 298; Town of Waltham v. Kemper, 55 id., 356. Alabama: — Allbritton v. Mayor, 60 Ala. 486. Wisconsin: — Kinworthy v. The Town of Ironton, 44 Wis. 656; Milwaukee v. Davis, 6 Wis., 377. Virginia: — Noble and Wife v. The City of Richmond, 31 Gratt. 271. Ohio: — Oily of Dayton v. Pease, 4 Ohio, 94. .Indiana: — -City ofLogansport v. Wright, 25 Ind., 513. Missouri: — Blake v. City of St. Louis, 40 Mo., 570; Murtaugh v. The City of St. Louis, 44 id., 480. Michigan: — Dewey vo City of Detroit, 15 Mich., 311. Connecticut: — Jones v. City of New Haven, 34 Conn., 1. Minnessota: — Kobs v. City of Mineapolis, 22 Minn., 160; Simmer v. City of St. Paul, 23 Minn., 408. Tennessee — Mayor v. Lasser 3 Humphreys, 757. Georgia: — ZJayor etc. of Savannah v. Waldner, 49 Ga. 316. Louisiana: — Oniel v. City of New Orleans, 30 La. Am., 220. New Hampshire: — Wheeler v. Troy, 20 N. H. 80; Gilham v. Laconia, 55 N, H.136. Iowa: — Wallace v. City of Muscatine, 4 Green, 373. Massachusetts: — Child v. City of Boston, 4 Allen, 52; Oliver v. Worcester, 102 Mass., 500.

In the last case cited, the court thus clearly stated the rule: “The distinction is well established between the responsibilities of towns, and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public.

“To render municipal corporations liable to private actions for omission or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate ca= *252pacify, an express statute is doubtless necessary. * * * “But this rule does not exempt towns and cities from the liability to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus where a special charter, accepted by a city or town, or granted at its request, requires it to construct public works, and enables it to assess the expense thereof upon those immediately benefitted thereby, by way of tolls or otherwise, the city or town is liable, as any other corporation would be, for an injury done to any person in the negligent exercise of the powers so conferred.”

See also Dillon on Municipal corporations, 764; Cooley on Torts, 625; Cooley’s Con. Lim. 803; Wharton on Negligence, 956, et seq.; Sherman & Redfield on negligence, 125-133; Thompson on negligence, 731-768, in which the cases bearing on the question are collected.

The character of corporate existence possessed by New England towns and cities, not existing under special charters, is very fully considered by judge Dillon in his work on Municipal Corporations5 11,14; 763-796; and in cases cited from these states, the decisions are all affected by the fact, that, the towns, cities or counties, possessed only such corporate powers as were given to all such corporations by general laws, and were not municipal corporations created by special charters, at the wish of the inhabitants. This is true in the following cases: Oliver v. Worcester, 102 Mass., 498; Chidsey v. Canton, 17 Conn., 478; Reed v. Belfast, 20 Maine, 248; Baxter v. Turnpike Co., 22 Vt., 114; Mower v. Leicester, 9 Mass., 247; Providence v. Clapp, 17 How., 101. Several of these cases, however, recognize the common law liability of municipal corporations created by special charter. Chosen Freeholders v. Strader, 3 Harv. 108; Croley v. Chosen Freeholders of Essex, 3 Dutcher, and Liven-more v. Chosen Freeholders of county ol' Camden, 29 N. J. 245; are all cases in which injury resulted from failure to keep in repair county bridges, and were decided on the same grounds as the New England oases.

The case of Pray v. The Mayor etc., 32 N. J., probably rests on the same grounds, but the report of the case does not render this certain, but as the cases, above referred to, are given as authority or the decision, we take this to be true.

*253Brinkm >yt>r v. City of Evansville, 2!) Ind., 187, decides that a city, incorporated by special charter, is not responsible for property destroyed by fire, where the city had not exercised, such legislation or judicial power, as it might have exercised under its charter; but in the opinion, the court recognized the liability of a municipal corporation for injury resulting from its neglect to keep in proper repair, streets which had been opened, in the following language: “There is hut little, if any, analogy between the powers and duties devolving on-these municipal governments, in the organization of a fire department, and those in relation to the improvement of streets, and the construction of bridges, culverts and sewers. A street, when improved, is a public highway, open to the free use of all, and it is an old and well established principle that a corporation is bound to keep it in proper repair or condition, and it is responsible for the damage caused by a neglect of that duty.”

Duke v. Mayor etc., of Rome, 20 Ca., G35,' only decides that a municipal corporation is not liable for an error of judgment by a may- or and council in refusing to grant a license.

In City of Richmond v. Long, 17 Gratt., it was held that the city was not liable lor the value of a slave placed in the city hospital to be treated for small pox, who escaped therefrom and came to his death by exposure, and so, because the city in establishing the hospital seems to have acted under a general law which was intended to provide means to prevent the spreading of contagious diseases, the servants of the city in this respect being considered public officers for whose neglect the city was not responsible. Prather v. City of Lexington, 13 B. Monroe, 559, and Western College v. City of Cleveland, 12 Ohio, only decided that a municipal corporation is not responsible for property within its territorial limits destroyed by a mob.

Dargen v. Mayor, etc. simply holds that a municipal corporation, having authority under its charter to pass ordinances forbidding slaves to be abroad at night, or to assemble together without lawful permission, was not liable, at the suit of an owner, for the loss of a slave who was negligently killed by an officer of the city guard, in attempting to arrest him for a breech of such ordinance.

The English cases referred to in the brief of counsel for appellant, are either cases not against municipal corporations, incorporated by special charter, or cases in which the liability of heads of depart*254ments of the government, for the defaults, or neglects of persons appointed by them under consideration.

The case of Detroit v. Blakely, 21 Mich., 105, goes to establish, fully, the non-liability of municipal corporations for injury resulting from neglect to keen streets in repair; but it cites for its support a line of decisions, which to us seem not the most applicable, and ig-_ ñores the line of English and American cases to which we have partially referred in support of an opposite rule, besides, the case is much weakened by the dissenting opinion of Judge Cooley; and it seems to be in conflict with the decision of the same court in Dersey v. City of Detroit, 15 Mich.

In the case of City of Navasota v. Pearce, 46 Tex, 527, much of the reasoning' of the court would lead to the same result as that reach-O ed in the case of Blakely v. Detroit; but, in the case, it does not appear that the streets of the City of Navasota were not in good repair, nor that the ditch, into which the horse fell, was within the street, over which the city by its charter was given control, nor as near to the street as to make it the duty of the city to erect protection against it; nor does it appear that there was any want of due care in the city. We cannot now have access to the transcript to ascertain what the facts really were; but we know from the opinion itself, that it was not intended to lay *OiSwa*the broad rule, that a municipal corporation, created by a special charter, or by the voluntary action of the inhabitants of a given territory under the laws of this state which permit incorporation under the general law enacted for that purpose, is not liable to an action for an injury which may result from the neglect of such corporation to keep its streets in proper repair; for the opinion in the case expressly limits its application to the very case then before the court. That such corporations in m any respects may be responsible for their neglects, or misfeasances is recognized in Peck v. City oi Austin, 22 Texas, 265. The quesiion involved is incidentally noticed in Keller v. Corpus Christi, 50 Texas, 628; and inOonway v. City of Beaumont, decided at last Galveston term.

The question is one to be decided, by the application of common law principles, and to ascertain what these principles are, we can, and ought to resort to common law authorities, and doing so to our minds, the weight of authority, holding that such a corporation, created by special charter, is liable for an injury, resulting from its neg*255lect to keep its streets in repair, is so overwhelming that we feel constrained to hold the law so to be, and that an action lies for such an injury without its being expressly given by the statute.

The court gave the following charge:

“If the injury occasioned did not result from the slipping into the ditch alone, but was produced by the accidental lighting upon a broken bottle or other piece of glass or sharp instrument, and thereby the injury was inflicted, the city would not be responsible for such accidental injury, resulting from such a cause, if unknown to the city, and such a cause the city should not be expected to know without special notice, or without it had existed so long that by ordinary care it would have been discovered and known.

There were but two possible causes of the injury, under the ovdence, if there was no failure to exercise due care by the plaintiff.

The fall must have resulted from the defective sidewalk or ditch contiguous to it, or from defects iu both, and the injury must have resulted from the fall, or the fall so resulting the plaintiff must have injured by falling on some substance in the ditch.

Under the other charges given, the jury must have found that the plaintiff used due care, and must have found that there was neglect on the part of the city, or their verdict would necessarily have been different.

If there were broken bottles, other pieces of glass, or sharp instruments in the ditch, without which the injury, notwithstanding the fall, would not have resulted, even then, though these things could not have proved hurtful without the fall, if the fall was caused by the defective condition of the sidewalk, then it must be deemed the proximate cause of the injury. Ring v. City of Cohoes, 77 N. Y., 83; Palmer v. The Inhabitants of Andover, 2 Cush., 601.

If the injury resulted from one of the causes, or from the two combined, if such cause would not have existed but for the neglect of the city, then it would be liable, if there was no failure on the part of the plaintiff to exercise due care.

This being true, the charge of the court was sufficiently full in this respect, and it was not error to refuse the first instruction asked by the defendant, even if it had presented correct legal propositions.

The charges as asked, however, in effect contained the proposition that the city would not have occurred, but for the glass or other sharp substance in the drain; and this, without reference to whether *256it was negligence in the city, under all the circumstances to permit the drain to be in that condition. The action of the court in refusing to give instructions asked, have all been considered, and in so far as they were proper, the instructions were contained in the charge of the court given ; some of them, however, were not correct as propositions of law, and on this account were properly refused.

The assignments of error, which relate to the verdict and judgment, point out no particular errors, except that which relates to the question of excessive verdict and judgment.

The verdict seems to us large; yet, the injuries received were severe and permanent; such as render the plaintiff a cripple for life, and in such case we do not feel that we would be authorized to substitute our judgments for that of the jury that tried the cause, there being nothing to indicate that the verdict was the result of any undue influence, or error of law.

The charge of the court was very fair, there was evidence from which the jury might reasonably conclude, that the injury resulted from the negligence of the city, and the question'd' amount of damages was one to which we cannot apply any fixed and unbending standard, and so, as the case comes before us, it must be affirmed.

We have to regret, that in the decision of this case, involving as it does a question of great importance, we have not had the advantage of consultation with the Chief Justice; that the case could not be passed upon by the full bench.

The judgment is affirmed. ,

Stayton, J.

Chief Justice Willie having been of counsel, did not sit in this case.