Young v Davis and Another
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1863 |
| Date | 14 May 1863 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 675
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 31 L. J. Ex. 250; 8 Jur. (N. S.) 286; 10 W. R. 524, 6 L T 363: affirmed 1863, 2 H. & C. 197.
young v. davis and another. Jan 24, 25, 1862.-No action lies against a surveyor of highways, appointed under the 5 & 6 Wm 4, c 50, for damage resulting from an accident caused by his neglect to repair the highway [S. C. 31 L. J. Ex. 250; 8 Jur. (N. S.) 286; 10 W. R. 524, 6 L T 363: affirmed 1863, 2 H. & C. 197.] The declaration stated that before and at the time of the happening and committing of the grievances, &c , the defendants were the joint surveyors of highways of and for the parish of Alkerton, in the county of Oxford (a parish maintaining, and liable and bound to repair and keep in repair its own highways), duly appointed in that behalf Nevertheless the defendants, not regarding their duty in that behalf as such surveyors, conducted themselves so negligently, improperly and wrongfully in that behalf thdt by and through their (the defendants') said negligence, improper and wrongful conduct as such surveyors m that behalf, a certain public and common highway, called arid known as Alkerton Hill, of and in the parish aforesaid, in the county aforesaid, which the said parish was then liable and bound to repair and keep in repair, and whereof the defendants then had as such surveyors the survey, care and superintendance, and which it was then their duty as such surveyors to repair and keep in repair, was negligently and wrongfully suffeted and permitted by the defendants, before and upon the 19th of November, I860, to be and become [761] and; continue, and the said highway did then become and then was and continued out of repair and founderous, and in a state and condition dangerous for foot-passengers pas*iag along the said highway and the footpath thereof, and a certain hole dangerous to foot-passengers was then negligently and wrongfully suffered and per- 676 YOUNG V. DAVIS 7 H & N. 762 tnitted by the defendants as such surveyors to be, and the same then was in the said highway, and uninclosed and open at the end of the footpath of the said highway, so that the said footpath terminated abruptly and dangerously to foot-passengers at the said hole, and the said hole was then negligently and wrongfully suffered and permitted by the defendants as such surveyors to be and the same then was left, after day-light had ceased, without any light or other means whatsoever, although means were necessary to warn passengers going along the said footpath of the said hole, and without any inclosure of the said hole, or any other means whatsoever, although means were then "requisite and necessary to prevent passengers from stepping, slipping or fallinf from ofi the said footpath into the said hole. By reason and in consequence whereof the plaintiff, on the said 19th of November, 1860, whilst lawfully walking upon and along the said highway and the footpath thereof after day-light had ceased, and without any want of due care on his part, stepped and slipped from off the end of the said footpath into the said hole, and fell into the same and broke his leg, &c. Pleas First. not guilty (by statute 5 & 6 Wm. 4, c 50, s. 109). Secondly . that the defendants were not the joint surveyors of highways of and for the parish of Alkerton as alleged. Issues thereon. At the trial, before Keating, J., at the last Oxford Summer Assizes, it appeared that the defendants were the surveyors of highways for the parish of Alkerton in Oxfordshire, At a place called Alkerton Hill, which was a public highway, and which the parish was bound to keep in repair, there was a hole [762] in a part of the footpath vThich had been caused by the flow of water from the adjoining hills. On the night of the 19th November, I860, the plaintiff, while walking along this path, fell into the hole and broke his leg Shortly before the accident the hole in the footpath had become very much enlarged by unusually heavy rains. Some time before the accident notice was given to the defendants of the existence of the hole It was objected, on behalf of the defendants, that the action was not maintainable The learned Judge left it to the jury to say whether the accident arose from the negligence of the defendants in not repairing the footpath, and a verdict was found for the" plaintiff, with 1001 damages; leave being reseived to the defendants to enter a nonsuit or verdict for the defendants, if the Court should be of opinion that the action was not maintainable Mellish, in last Michaelmas Term, obtained a rule nisi to enter a nonsuit or a verdict for the defendants ; or to arrest the judgment for the insufficiency of the declaration, upon the ground that no action could be maintained against surveyors of highways for omitting to repair a highway, whereby the plaintiff had been injured " Huddlestone and Dowdeswell now shewed cause. The defendants had notice that the highway was dangerous, and neglected their duty as surveyors in not repairing it When a public officer is guilty of a neglect of duty, whereby an individual sustains an injury, he has a right of action. Surveyors of highways are officers of the parish, who have certain duties imposed upon them by statute The 6th section of the 5 & 6 Wm 4, c 50, requires the inhabitants of every parish maintaining its own highways, in every year 'to elect one or more persons to serve the office of surveyor, " which surveyor shall repair, and keep in repair, the several highways in the said pansh for which he is appointed." No [763] doubt the inhabitants of the parish might be indicted for the iion-repair of the highways within it, but the surveyor is under a statutory obligation to repair them. The 7th section prescribes the qualification of the surveyor. The 8th section imposes a penalty on any person who, being elected, shall refuse or neglect to take upon himself the office of surveyor, or provide a sufficient deputy. The 20th section imposes a penalty on a surveyor who shall neglect his duty The 27th section empowers the surveyor to make a rate in order to raise money for the purposes of the Act The 56th section imposes a penalty on any surveyor who shall lay any heap of stones, or any other matter or thing, upon any highways, and allow the same to remain there at night, to the danger or personal damage of any person passing thereon The 57th section shews that though the surveyor is subject to a penalty, he is nevertheless liable to a civil action. The 94th section prescribes the mode of proceeding before justices if any highway is out of repair, and that provision applies not only to surveyors of highways, but to any other person who is bound to repair ratione tenures. Wherever a statute imposes a duty on an individual, he is liable to an action at the suit of a party who has sustained damage by his neglect of that duty; and it makes no diffeience that the statute which creates the duty also subjects him to a penalty 7H.fcH. 784. YOUNG V. DAVIS 677 for the breach of it Thus, in Couch v. Steel (3 E & B 402), it was held that a seaman might maintain an action against the owner of a vessel for a bieaeh of duty in not having on board a proper supply of medicines as required by the 7 & 8 Viet c 112, although the Act imposes a penalty as a specific punishment for that breach of duty. [Martin, B. There the duty was imposed bj act of parliament for the benefit of sailors only. Wilde, B. The duty was imposed 'for the benefit of a certain [764] limited class; here it is for the benefit of the public at large.] In Whttehouw v Fellowes (10 C B. N. S. 765) it was held that the trustees of a turn-pike road were liable for the negligent mode in which they constructed and kept a drain at the side of the road, whereby the plaintiffs land and colliery were flooded. [Pollock, C. B. Trustees of a turnpike-road may be considered in the light of trustees of a harbour, or of any other public trustees who obtain remuneration from tolls ] There are seveial instances in which actions have been maintained against surveyors of highways Roberts v. Head (16 East, 215) was an action against the surveyors of highways who, in the execution of their office, undermined a wall adjoining the highway. Alston v. Sealer (9 Bing 3) was an action by a reveraioner against a surveyor of highways for subtraction of a portion of his bank by the road-side. Dam^, v. Cuihng (8 Q B 286) was an action against a surveyor of highways...
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